Can a Mississippi city zone a county-owned utility plant or pass an odor ordinance against it?

Plain-English summary

The City of Pascagoula was dealing with odor problems and considering an ordinance to address them. Specifically, the City wondered whether it could regulate a wastewater treatment facility owned by the Jackson County Utility Authority (JCUA), and whether it could reach companies outside city limits whose odors drift into the city.

The City's attorney asked four questions. The AG's answers:

Question 1: Is JCUA subject to municipal zoning?

Generally yes. Reasonable municipal zoning ordinances aimed at public safety and elimination of public nuisances may be enforced against public entities, unless the legislature granted them "plenary power." JCUA's statutes (§ 49-17-733(4), § 49-17-743, § 49-17-745) grant broad powers but not plenary power. So JCUA must generally comply with reasonable municipal zoning. But the city cannot enact ordinances that have the effect of prohibiting JCUA from fulfilling its statutory obligations.

Question 2: Can Pascagoula adopt an odor ordinance?

Yes. Section 17-1-3(1) and the home rule statute (§ 21-17-5(1)) give municipalities broad authority to enact regulations promoting health, safety, morals, or general welfare. That authority encompasses odor regulations.

Question 3: Can Pascagoula enforce an odor ordinance against JCUA's facility?

Specific enforcement against a particular entity is a mixed question of fact and law. The AG declined to opine.

Question 4: Can Pascagoula enforce an odor ordinance against a company outside city limits whose odors enter the city?

No. A municipality only has authority to enforce ordinances within its corporate limits. MS AG Op., Murdock (Feb. 28, 2014); MS AG Op., Jones (Aug. 17, 1994). A municipality has no authority to enforce a noise or odor ordinance against a business located outside its boundaries.

The opinion's distinction between plenary-power public entities (like the State Highway Commission, exempt from local zoning) and broad-but-not-plenary entities (like JCUA, ITS/WCC) is the key doctrine. Cities can regulate the latter group; not the former.

What this means for you

If you're a Mississippi city dealing with odor or nuisance issues

You have authority to adopt ordinances regulating odors and nuisances under § 17-1-3(1). Practical guidance:

• Adopt regulations with measurable, objective standards (specific odor concentrations, hours of restriction, notice procedures) rather than vague nuisance language.
• Apply ordinances within city limits only.
• Apply ordinances to all sources within city limits, including public entities like county utility authorities, but recognize that such entities cannot be effectively shut down through ordinance.

If you're a county utility authority

You're subject to reasonable municipal zoning unless the legislature gave you plenary power. JCUA does not have plenary power. Your facilities must generally comply with municipal zoning where they are located. But:

• A municipal ordinance that effectively prevents you from fulfilling statutory utility obligations is invalid.
• Engage with cities early in siting and operations decisions. Adversarial regulation late in the process is costly for everyone.
• Where ordinance compliance creates genuine conflict with utility duties, document the conflict and litigation may be needed.

If you're a city zoning planner

When zoning a county utility facility, treat it as a normal land use subject to your usual standards. Ordinances must be "reasonable." Don't try to shut the utility down via zoning. Do regulate buffer zones, noise abatement, odor control technology, screening, and similar measures.

If you're a city resident bothered by odors from outside the city

The city cannot reach the source if the source is outside city limits. Your remedies are:
- Complain to the polluter.
- Complain to the Mississippi Department of Environmental Quality.
- Pursue private nuisance litigation under common law.
- Coordinate with the county or with a regional environmental compact.
- Lobby the state legislature for stronger statewide odor regulations.

If you're a state legislator

This opinion identifies the gap: cities cannot reach extraterritorial odor sources. If statewide enforcement is needed, the path is to give MDEQ stronger authority or to authorize regional enforcement compacts. Some states have addressed this with regional air-quality boards.

Common questions

Q: What's "plenary power" in this context?
A: A grant of "complete authority" or "full power and authority" so broad that it implies exemption from local regulation. The Mississippi Transportation Commission (under § 65-1-47) has plenary power and is exempt from local zoning. The State Building Commission similarly. JCUA, by contrast, has broad powers but not plenary.

Q: How does the city know if its ordinance is "reasonable"?
A: Reasonableness is fact-specific. Generally, ordinances aimed at public safety and elimination of public nuisances, applied uniformly, are reasonable. Ordinances that single out a specific facility or target a specific operation may not be.

Q: Can the city enforce against a JCUA facility right now?
A: Specific enforcement is a mixed question of fact and law. The AG declined to opine. Practically, the city would need to apply its zoning and odor ordinances and let any disputes proceed in court if JCUA contests them.

Q: What about odors from a paper mill or industrial plant outside city limits?
A: The city cannot enforce against such a source. Other channels (MDEQ, private nuisance litigation, federal Clean Air Act if applicable) are the remedies.

Q: Can two cities combine to enforce a regional ordinance?
A: Mississippi has provisions for interlocal agreements, but they generally don't extend a city's enforcement authority outside its own limits. A regional compact would need state legislative authority.

Q: Can the city subpoena information from an out-of-city facility?
A: Civil subpoena power is limited to enforcing valid municipal ordinances. If the city cannot enforce against the facility, it cannot subpoena it for ordinance-enforcement purposes.

Background and statutory framework

Mississippi's home rule statute (§ 21-17-5(1)) gives municipalities broad authority over municipal affairs, but only to the extent not inconsistent with state law. Section 17-1-3(1) authorizes municipal regulation for "promoting health, safety, morals, or the general welfare of the community." Together, these statutes anchor cities' authority to regulate nuisances, including odors.

The plenary-power doctrine, articulated in City of Jackson v. Mississippi State Building Commission, 350 So. 2d 63 (Miss. 1977), exempts public entities with full statutory authority over their own subject matter from local zoning. City of Hattiesburg v. Region XII Commission on Mental Health and Retardation, 654 So. 2d 516 (Miss. 1995), confirmed that absent plenary power, public entities are subject to reasonable zoning.

Prior AG opinions have applied this doctrine to specific entities:
- McGrath (July 29, 2016): Mississippi Transportation Commission is plenary, exempt from local zoning.
- Litchliter (May 15, 2009): Mississippi Department of ITS and Wireless Communication Commission have broad authority but not plenary, subject to reasonable zoning.

JCUA falls into the Litchliter category. Sections 49-17-733(4), 49-17-743, and 49-17-745 give JCUA broad powers but stop short of plenary. So JCUA is subject to reasonable municipal zoning, with the caveat that no ordinance can effectively prevent JCUA from fulfilling its statutory functions.

The extraterritoriality limit is straightforward: municipal ordinances do not reach beyond municipal limits. Murdock (2014) and Jones (1994) reinforce this.

Citations and references

Statutes:
- Miss. Code Ann. § 17-1-3(1) (municipal regulatory authority)
- Miss. Code Ann. § 21-17-5(1) (Mississippi Home Rule)
- Miss. Code Ann. § 25-53-171 (ITS authority)
- Miss. Code Ann. § 25-53-171(4) (Wireless Communication Commission authority)
- Miss. Code Ann. § 49-17-731 (Jackson County Utility Authority creation)
- Miss. Code Ann. § 49-17-733(4) (JCUA powers)
- Miss. Code Ann. § 49-17-743 (county utility authority broad powers)
- Miss. Code Ann. § 49-17-745 (county utility authority rules)
- Miss. Code Ann. § 65-1-47 (Highway Commission plenary authority)

Cases:
- City of Hattiesburg v. Region XII Comm'n on Mental Health and Retardation, 654 So. 2d 516, 518 (Miss. 1995)
- City of Jackson v. Mississippi State Bldg. Comm'n, 350 So. 2d 63, 66 (Miss. 1977)

Prior AG opinions referenced:
- MS AG Op., Mitchell (June 26, 2006), counties subject to reasonable municipal zoning
- MS AG Op., McGrath (July 29, 2016), MTC has plenary power
- MS AG Op., Litchliter (May 15, 2009), ITS and WCC subject to local zoning
- MS AG Op., Cuevas (Nov. 14, 1996), county may regulate solid waste sites under home rule
- MS AG Op., Murdock (Feb. 28, 2014), municipality limited to its corporate limits
- MS AG Op., Jones (Aug. 17, 1994), no extraterritorial enforcement of noise ordinance

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/M.Moore-May-10-2023-Municipal-Zoning-and-Odor-Ordinances.pdf

Original opinion text

May 10, 2023

Michael R. Moore, Esq.
Attorney, City of Pascagoula
Post Office Box 1529
Pascagoula, Mississippi 39568-1529

Re: Municipal Zoning and Odor Ordinances

Dear Mr. Moore:

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

Questions Presented

1. Is the Jackson County Utility Authority, which was created pursuant to Section 49-17-731 of the Mississippi Code, subject to municipal zoning ordinances?

2. Is the city of Pascagoula empowered to adopt and enforce an ordinance establishing objective standards prohibiting the emission of nuisance odors?

3. Assuming that the answer to Question No. 2 is yes, is the city of Pascagoula authorized to enforce such an ordinance as to a treatment facility owned and operated by the Jackson County Utility Authority?

4. Assuming that the answer to Question No. 2 is yes, is the city of Pascagoula authorized to enforce such an ordinance as to a company that generates offending odors outside of the municipal boundaries where such odors enter the city of Pascagoula's boundaries?

Brief Response

1. In general, the Jackson County Utility Authority is subject to municipal zoning ordinances. Whether a particular ordinance is enforceable against the Jackson County Utility Authority is a factual determination that must be made by the municipal governing authorities and is subject to judicial review. While reasonable municipal zoning restrictions may be enforced, the city of Pascagoula may not enact an ordinance that would have the effect of prohibiting the Jackson County Utility Authority from fulfilling its statutory obligations.

2. Yes. The city of Pascagoula has the authority to enact regulations regarding nuisance odors if such regulations are "for the purpose of promoting health, safety, morals, or the general welfare of the community. . . ." Miss. Code Ann. § 17-1-3(1).

3. Whether an ordinance prohibiting the emission of nuisance odors is enforceable against a specific entity is a mixed question of fact and law on which this office cannot opine.

4. The city of Pascagoula has no authority to enforce a nuisance odor ordinance against a company located outside of the municipal boundaries.

Applicable Law and Discussion

As an initial matter, your questions center around the city of Pascagoula's ("City") authority to regulate a particular entity, the Jackson County Utility Authority ("JCUA"). Whether a particular entity is subject to or has violated a specific ordinance is a factual determination to be made by the municipality and is subject to judicial review. This opinion is limited to whether county utility authorities are generally subject to municipal regulations and whether a municipality can enact regulations regarding nuisance odors. We offer no opinion on the enforceability of ordinances against a particular entity or the validity of any specific ordinance.

Section 17-1-3(1) grants municipalities the authority to enact regulations governing a variety of purposes, including land use, "for the purpose of promoting health, safety, morals, or the general welfare of the community. . . ." The Mississippi Supreme Court has held that unless specifically exempt, "reasonable zoning restrictions aimed at public safety and the elimination of public nuisances may be enforced" against public entities. City of Hattiesburg v. Region XII Comm'n on Mental Health and Retardation, 654 So. 2d 516, 518 (Miss. 1995); see also MS AG Op., Mitchell at 2 (June 26, 2006) (opining that absent statutory language to the contrary, a county is generally "subject to reasonable municipal zoning [restrictions] aimed at public safety and the elimination of public nuisances."). However, the Mississippi Supreme Court also has held that the State Building Commission was exempt from a city building permit requirement because the Legislature had given it "full power" to construct state buildings. City of Jackson v. Miss. State Bldg. Comm'n*, 350 So. 2d 63, 66 (Miss. 1977) (opining that if the public entity has specific plenary authority, the "grant of specific power denies contrary power.").

This office was previously asked whether projects constructed by the Mississippi Transportation Commission ("MTC") on MTC property were subject to local zoning ordinances. MS AG Op., McGrath (July 29, 2016). McGrath cites Section 65-1-47, which grants the State Highway Commission the following:

[C]omplete authority to issue rules, regulations and orders under which the State Highway Department shall have control and supervision, with full power and authority under rules, regulations and orders issued by the commission, to locate, relocate, widen, alter, change, straighten, construct or reconstruct any and all roads on the state highway system heretofore or hereafter taken over by it for maintenance as a part of such system, and shall have full and complete authority for regulating the making of all contracts, surveys, plans, specifications and estimates for the location, laying out, widening, straightening, altering, changing, constructing, reconstructing and maintaining of and the securing of rights-of-way for any and all such highways. . . .

(Emphasis added). In McGrath, we opined that "the granting of such broad authority to have 'complete authority' and to have 'control and supervision, with full power and authority' to the MTC in Section 65-1-47 does constitute 'plenary power,' and such power would serve to exempt MTC from being subject to local zoning ordinances." McGrath at *2. The McGrath opinion discusses further the applicability of local zoning ordinances to public entities.

In a distinguishable opinion, this office opined that the Mississippi Department of Information Technology Service ("ITS") and the Mississippi Wireless Communication Commission ("WCC") were not exempt from municipal and county zoning ordinances when building the Mississippi Wireless Information Network as authorized by Section 25-53-171. MS AG Op., Litchliter (May 15, 2009). Notably, the WCC and ITS have the "sole authority to promulgate rules and regulations governing the operations of the wireless communication system . . . and . . . all legal authority necessary and proper to perform this function." Miss. Code Ann. § 25-53-171(4). However, this office opined that this statutory authority does not equate to "'plenary power' as contemplated by the supreme court in the City of Jackson v. Mississippi State Building Commission case." Litchliter at *4. The Litchliter opinion went on to say that "while reasonable zoning restrictions aimed at public safety may be enforced, a municipality and/or county may not enact an ordinance that would have the effect of prohibiting the WCC from fulfilling its statutory obligations." Id at 2.

The JCUA Board of Directors "is granted and may exercise all powers and rights granted pursuant to Sections 49-17-739 through 49-17-773 to promote the health, welfare and prosperity of the general public." Miss. Code Ann. § 49-17-733(4). Section 49-17-743 grants county utility authorities broad powers with respect to the construction, operation, and management of its wastewater and stormwater systems. These county utility authorities are further required by Section 49-17-745 to promulgate rules and regulations relating to the construction, operation, and maintenance of any water, wastewater, and storm water system within its service area. However, as with the Litchliter opinion, it is the opinion of this office that such authority does not equate to plenary power. Accordingly, it is the opinion of this office that municipal zoning ordinances are generally applicable to the JCUA. Consistent with our prior opinions, while reasonable municipal zoning restrictions may be enforced, the City may not enact an ordinance that would have the effect of prohibiting the JCUA from fulfilling its statutory obligations, which include, as stated above, the construction, operation, and management of its wastewater and stormwater systems as well as the promulgation of rules and regulations relating to the construction, operation, and maintenance of any water, wastewater, and storm water system within its service area.

In response to your second question, relying upon a county's authority under home rule and Section 17-1-3(1), this office has opined that "[i]n the absence of express statutory authority preempting a county from adopting ordinances relating to the appearance, noise, odor, and visibility of solid waste disposal sites, a county may adopt ordinances related to these sites that promote the health, safety, morals or general welfare of the community." MS AG Op., Cuevas at *2 (Nov. 14, 1996). Similarly, the municipal home rule statute allows municipal governing authorities "to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi . . . ." Miss. Code Ann. § 21-17-5(1). Thus, it is the opinion of this office that a municipality's authority to adopt ordinances under Section 17-1-3(1) includes the authority to regulate or restrict the emission of nuisance odors.

In response to your third question, whether a specific ordinance is enforceable against a particular public entity is a mixed question of fact and law on which this office cannot opine.

Your fourth question asks whether the City is authorized to enforce a nuisance odor ordinance against a company located outside of the City's boundaries. This office has consistently opined that a municipality only has the authority to enforce ordinances within the corporate limits of the municipality. MS AG Op., Murdock at 1 (Feb. 28, 2014). In MS AG Op., Jones at 1 (Aug. 17, 1994), this office opined that a municipality has no authority to enforce a noise ordinance against a business located outside the municipal corporate limits. Similarly, a municipality has no authority to enforce a nuisance odor ordinance against a company located outside of the municipal boundaries.

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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General