Can a Mississippi town let private businesses use street parking spaces, sidewalks, or rights-of-way for inventory or seating?

Plain-English summary

Mathiston and Sturgis (small towns) faced COVID-era questions about private use of public spaces. The town attorney asked four questions:

1. Can a hardware store keep inventory on town property (right-of-way, street, parking, sidewalk)?
2. Can an ice cream/snow cone stand put tables and chairs in on-street parking spaces?
3. Does a town employee's ownership interest in the ice cream stand change the answer?
4. Can the town designate a parking space in front of a private business exclusively for that business's customers (10 minutes max)?

The AG's answers:

1. Hardware store inventory: Decline. The store had already been doing it; AG opinions are prospective only (Section 7-5-25; Magee 2008).
2. Ice cream stand tables/chairs in parking spaces: No. Section 21-27-1 bars exclusive franchises for use of streets, highways, bridges, or public places. The 1909 Caldwell v. George case held that aldermen cannot permit permanent obstruction of streets and sidewalks "from side to side and from end to end." Without a formal street closure under Section 21-37-7, the town can't reserve street space for private use. Emergency powers may permit temporary exceptions.
3. Town employee ownership interest: Refers to the Ethics Commission. Mississippi's Ethics in Government Laws are administered by the Ethics Commission, not the AG.
4. Parking space exclusively for one business's customers: Same as Question 2. The town cannot grant exclusive use of public parking to private businesses.

The 2013 Jacks opinion concluded a city couldn't lease a public alleyway for a restaurant's outdoor dining; the only path was formal closure and vacation under Section 21-37-7.

For emergencies: Section 33-15-1 et seq. (state-level emergency authority) and Section 21-19-3 (municipal regulations to prevent contagious diseases) can expand authority. The 1934 Hartman v. May case confirmed municipalities can exercise police power for public health.

What this means for you

For municipal attorneys

Walk through the analysis:

1. Is the proposed use exclusive (one business gets it) vs. open (any private use OK in time/place/manner regulated way)? Exclusive uses face Section 21-27-1's bar.
2. Does the use obstruct streets or sidewalks? Caldwell v. George and Section 21-27-1 say obstruction is prohibited absent formal closure.
3. Is there a declared emergency expanding municipal authority? Check both state (Section 33-15-11(c)(1)) and local emergency declarations.
4. If the use is desired permanently, does the town want to formally close and vacate the area under Section 21-37-7? That's a separate process with its own requirements.

Block proposals for permanent exclusive private use of public space. Permit time-limited, regulatory uses (e.g., sidewalk sales with permits during specified hours, all businesses can apply equally) where authorized by local ordinance.

For mayors and boards of aldermen

You don't have authority to give one business permanent or exclusive use of public space. Resist requests, even from sympathetic businesses or political allies.

If you want to support outdoor commerce (post-COVID has been a common theme), use these tools:

1. Sidewalk-use ordinances allowing all businesses to apply for permits with same standards (signage, dimensions, ADA compliance, hours)
2. Outdoor dining ordinances with neutral application
3. Special event street closures (street fair, farmers market) with full closure, all businesses participate
4. Formal street vacation under Section 21-37-7 for areas the town truly doesn't need
5. Emergency authority during declared emergencies (with limits)

The exclusive-franchise prohibition is structural; respect it.

For town clerks

When a business asks about using street space, refer them to the city attorney. Don't issue informal authorization.

For permitted uses (sidewalk sales, etc.), maintain a permit system with neutral application standards.

For business owners considering outdoor use of public space

You generally cannot get exclusive use of streets, sidewalks, or parking. What you can do:

1. Apply for a permit under your town's outdoor-use ordinance (if it has one)
2. Participate in town-sponsored events that open public space
3. Use private property (your business's property, leased space) for outdoor uses
4. Petition the town for a formal street closure if a permanent change makes sense for the area (note: this is a complex process)

For parking authority personnel

Don't reserve parking spaces for specific businesses' customers. The blanket "10-minute customer parking" sign in front of one business is the kind of use Section 21-27-1 prohibits.

What you can do:

1. Set general time-limit zones (15-minute parking) applicable to all
2. Reserve handicapped parking
3. Reserve loading zones (with neutral availability to all delivery operations)
4. Reserve specific business-loading zones tied to specific commercial activities (e.g., taxi stands), but with care about exclusivity

For ethics-related questions (employee ownership of business using public space)

Refer to the Mississippi Ethics Commission. The AG's opinion expressly declined to address Question 3 (town employee ownership interest). The Ethics Commission has jurisdiction over conflicts of interest and can issue specific guidance.

Common questions

Q: What is Section 21-27-1?
A: Mississippi statute prohibiting municipalities from granting any exclusive franchise or exclusive right to use streets, highways, bridges, or public places.

Q: What is Section 21-37-7?
A: Mississippi statute providing the procedure for municipal closure and vacation of streets and alleys. The 2013 Jacks opinion identifies it as the proper path for converting public to private use.

Q: What does Caldwell v. George say?
A: A 1909 Mississippi Supreme Court decision holding that aldermen lack authority to permit permanent obstruction of streets and sidewalks. The streets and sidewalks "from side to side and from end to end" are for public use.

Q: Can the town allow temporary use of sidewalks (e.g., a sidewalk sale)?
A: Through a properly adopted ordinance with neutral standards (any business can apply, time-limited, dimensions specified, etc.), temporary use is typically OK. The prohibited form is exclusive long-term use without ordinance authority.

Q: What about during a declared emergency?
A: Section 33-15-11(c)(1) lets the Governor suspend statutes during a state-of-emergency. Section 21-19-3 gives municipalities authority for public-health regulations. Combined, emergency authority may expand temporary use of public space. The 1934 Hartman v. May decision recognizes the police-power basis.

Q: Did COVID-19 change this analysis?
A: COVID prompted many cities to allow outdoor dining and inventory display. This was generally done through emergency declarations or emergency ordinances. Post-emergency, those temporary expansions ended unless the city formally adopted new ordinances.

Q: What about parklets or "streateries" (permanent outdoor dining built into parking spaces)?
A: Some Mississippi cities have considered these. Implementation requires either: (1) formal street vacation under Section 21-37-7, (2) general ordinance allowing all businesses to apply with neutral standards, or (3) some other framework. Discriminatory or exclusive grants violate Section 21-27-1.

Q: How does this affect food trucks?
A: Food trucks operate under separate frameworks (vending licenses, location-specific permits). Cities can regulate food truck locations through ordinances applicable to all food trucks, but cannot grant exclusive locations to one operator.

Q: What's the consequence of an unlawful exclusive grant?
A: The grant is void (per Caldwell v. George: "void, and afforded him no protection"). Other businesses excluded can challenge. Liability concerns for officials authorizing unlawful grants.

Q: Where do I direct ethics questions about town employees?
A: Mississippi Ethics Commission. Phone: 601-359-1285. They can issue advisory opinions on conflicts of interest.

Background and statutory framework

Mississippi's framework on municipal use of public space:

Public-space prohibition:
- Section 21-27-1: "[N]o municipality shall grant to any person, firm or corporation any exclusive franchise or any exclusive right to use or occupy the streets, highways, bridges, or public places in such municipality for any purpose."

Street closure procedure:
- Section 21-37-7: procedure for closing and vacating streets and alleys (the only proper path to permanent private use of formerly public space)

Emergency authority:
- Section 33-15-1 et seq.: state emergency management
- Section 33-15-11(c)(1): Governor's authority to suspend statutes during emergency
- Section 21-19-3: municipal authority for public health regulations
- Police power: state authority delegated to municipalities for public health (per Hartman v. May)

Case authority:
- Caldwell v. George, 50 So. 631 (Miss. 1909): streets and sidewalks for public use; permanent obstruction void
- Hartman v. May, 151 So. 737 (Miss. 1934): police power for public health may be delegated to municipalities

Prior AG opinions:
- MS AG Op., Magee (Aug. 29, 2008): AG opinions are prospective only
- MS AG Op., Jacks (Mar. 15, 2013): no lease of public alleyway to restaurant; only path is formal closure
- MS AG Op., Herring (Sept. 11, 2006): closure under Section 21-37-7 procedure

Ethics framework:
- Mississippi Ethics in Government Laws (Section 25-4-101 et seq.): conflicts of interest
- Mississippi Ethics Commission: jurisdiction over conflicts of interest matters

Citations and references

Statutes:
- Miss. Code Ann. § 7-5-25, AG opinion authority
- Miss. Code Ann. § 21-19-3, municipal public-health regulations
- Miss. Code Ann. § 21-27-1, exclusive franchise prohibition
- Miss. Code Ann. § 21-37-7, street closure procedure
- Miss. Code Ann. § 33-15-1 et seq., emergency management
- Miss. Code Ann. § 33-15-11(c)(1), Governor's suspension authority

Cases cited:
- Caldwell v. George, 50 So. 631 (Miss. 1909), public use of streets/sidewalks
- Hartman v. May, 151 So. 737, 738 (Miss. 1934), municipal police power for public health

Prior AG opinions cited:
- MS AG Op., Magee (Aug. 29, 2008), prospective opinions only
- MS AG Op., Jacks (Mar. 15, 2013), no lease of public alley
- MS AG Op., Herring (Sept. 11, 2006), Section 21-37-7 closure procedure

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/08/C.Brown-August-2-2022-Use-of-Municipal-Property.pdf

Original opinion text

August 2, 2022

Charles Bruce Brown, Esq.
Attorney, Towns of Mathiston and Sturgis
Post Office Box 228
Starkville, Mississippi 39760-0228

Re: Use of Municipal Property

Dear Mr. Brown:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

Based on the Covid-19 pandemic, you present the following questions regarding the authority of the towns of Mathiston and Sturgis:

1. Can the Town allow a local hardware store to place inventory on Town property, including on the edge of the right-of-way, in the street, in parking spaces, and on the sidewalk?
2. Can the Town allow an ice cream and/or snow cone stand to place tables and chairs in public on-street parking spaces to be used by customers of the ice cream and/or snow cone stands?
3. Would the answer to Question 2 be impacted by a Town employee having an ownership interest in the ice cream and/or snow cone stand?
4. Can the Town designate a single parking space in front of a private business, limited for customers to use to pick up items purchased from such business for a period of 10 minutes or less, and exclude other citizens from using such parking space for other purposes, including downtown shopping?

Brief Response

1. Because the Town has already allowed the business owner to place inventory on public property, we must decline to respond to this question.
2. The Town is not authorized to allow on-street parking spaces to be utilized exclusively by the patrons of a private business to the exclusion of other members of the public. However, under emergency powers provided to the governor and municipalities, there may be exceptions to this law.
3. Question 3 potentially raises an issue under Mississippi's Ethics in Government Laws, which may be addressed by the Ethics Commission.
4. Please see our response to Question 2.

Applicable Law and Discussion

In response to your first question, your request notes that a business owner "has been placing" certain inventory on property owned by the Town. Pursuant to Mississippi Code Annotated Section 7-5-25, an Attorney General's opinion can only be applied prospectively and can neither validate nor invalidate past action. MS AG Op., Magee at *1 (Aug. 29, 2008). Because your first question relates to past action, we are unable to answer with an official opinion.

With respect to your second question, you indicated that the public parking spaces referenced are parking spaces situated along the public streets, but the Town does not wish to close the public streets and declare them surplus property. We have previously opined that a municipality could not lease a public alleyway to a private entity or individual for use as an outdoor dining area by a restaurant. MS AG Op., Jacks at 1–2 (Mar. 15, 2013). In that opinion, the requestor claimed the city was "not currently in need of the alley and believe[d] the closure would benefit the general downtown area." Id. at 1. This office concluded that the only way for the adjoining property owner to utilize the alleyway was "to close and vacate the alley, in accordance with Mississippi Code Annotated Section 21-37-7." Id. at *2 (citing MS AG Op., Herring (Sept. 11, 2006)).

Further, Section 21-27-1 prohibits a municipality from granting "to any person, firm or corporation any exclusive franchise or any exclusive right to use or occupy the streets, highways, bridges, or public places in such municipality for any purpose." Additionally, "[t]he streets of a municipality, including the sidewalks, 'from side to side and from end to end,' are for the use of the public, and, in the absence of legislative authority, a board of aldermen, or city council, have no power to permit a permanent obstruction thereof." Caldwell v. George, 50 So. 631 (Miss. 1909) (holding that "[t]he permission . . . given appellee by the board of aldermen to extend his warehouse over the sidewalk in question, was void, and afforded him no protection."). Whether city streets and sidewalks are being used by private businesses to the exclusion of others is a fact determination that can only be made by the governing authorities of the municipalities.

Municipal actions that may be appropriate when emergency powers are employed may differ when there is no state of emergency. See Miss. Code Ann. § 33-15-11(c)(1) (authorizing the Governor to suspend the application of certain statutes during an emergency proclaimed pursuant to Section 33-15-1 et seq.). Additionally, municipalities also have certain emergency powers conferred on them by the Legislature, with Section 21-19-3 specifically granting the governing authorities of municipalities "the power to make regulations to prevent the introduction and spread of contagious or infectious diseases; to make quarantine laws for that purpose, and to enforce the same within five miles of the corporate limits . . . ." The Mississippi Supreme Court has held that the Legislature's right to enact reasonable health regulations rests in the state's police power, which may be delegated to municipalities for appropriate purposes. Hartman v. May, 151 So. 737, 738 (Miss. 1934). Municipalities may exercise this police power "for the protection of the health of their inhabitants." Id.

Accordingly, this office is of the opinion that absent a declared emergency in which certain municipal powers may be expanded, the Town is not authorized to allow on-street parking spaces to be utilized exclusively by the patrons of a private business to the exclusion of other members of the public.

Your third question potentially raises an issue under Mississippi's Ethics in Government Laws, which may be addressed by the Ethics Commission.

Finally, your fourth question asks about a town's authority to grant the sole use of public parking spaces to private businesses. Please see our response to Question 2.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Misty Monroe
Misty Monroe
Assistant Attorney General