MS 2023-11-R-Kirk-November-28-2023-Authority-of-Municipality-to-Donate-Space-for-Certified- November 28, 2023

Can a Mississippi city give a certified farmers' market free use of a city-owned parking lot, instead of charging rent?

Short answer: Yes. Miss. Code Ann. § 21-19-69 allows a Mississippi municipality to donate funds to a certified farmers' market operating in the city, up to the equivalent of a one-fourth (¼) mill ad valorem tax on all taxable property. AG opinions consistently treat the authority to donate funds as implicitly including the authority to make in-kind donations. So Winona can donate use of the parking lot, provided the value of the use does not exceed the statutory cap.

Apply this to your situation

This page answers the general question as of 2023. Ezel answers yours: what it means for your facts, under current Mississippi law, with citations.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

Winona owned a vacant parking lot. A certified farmers' market wanted to use it. The City's attorney asked: can the city donate the use, or does it have to charge a rental fee?

The AG said the city may donate the use in lieu of a rental fee, so long as the statute's requirements are met. § 21-19-69 authorizes the governing authorities of any municipality, in their discretion, to donate annually from the municipal treasury "such sums as deemed advisable to support any farmers' market that is certified by the Mississippi Department of Agriculture and Commerce and operating within the municipality, not to exceed the amount that would be generated from the levy of a one-fourth (¼) mill ad valorem tax upon all taxable property in the municipality."

The statute speaks of donating sums from the treasury. The opinion notes the office "has consistently opined that when a statute authorizes a municipality to donate funds, it is implied that the municipality has the authority to make in-kind donations as an alternative," citing Manley (May 1, 2015), Baum (Feb. 17, 2006), and Hewes (Jan. 28, 2005).

So if the city makes the factual determinations that the market meets the certification requirements and that the value of the donation does not exceed the statutory limit, it may donate the use of the lot in lieu of a rental fee. The opinion adds that it can neither validate nor invalidate any past action, and because the question deals with expenditure of public funds, it refers the city to the Office of the State Auditor.

What this means for you

Mayors and city attorneys

The opinion holds that under § 21-19-69 a municipality may donate the use of a vacant, city-owned parking lot to a certified farmers' market in lieu of a rental fee, "so long as the requirements of the statute are met, and the value of the donation does not exceed the amount established in the statute." It treats the statutory authority to donate funds as implicitly including the authority to make an in-kind donation as an alternative.

Farmers' market organizers

The opinion's authority runs to a market that "is certified by the Mississippi Department of Agriculture and Commerce and operating within the municipality." Whether to donate is left to the municipality's discretion under the statute's "in their discretion" language.

State Auditor staff

The opinion notes the city must make the factual determinations that the market meets the certification requirements and that the value of the donation does not exceed the one-fourth mill limit. Because the question involves the expenditure of public funds, the opinion refers the city to the Office of the State Auditor.

Common questions

Q: What does § 21-19-69 let a city do for a farmers' market?
A: It lets the governing authorities, in their discretion, donate annually from the municipal treasury sums to support a certified farmers' market operating in the municipality, capped at what a one-fourth mill ad valorem tax on all taxable property in the municipality would generate.

Q: Does that include donating use of property instead of cash?
A: Yes. The opinion says the office has consistently treated the authority to donate funds as implicitly including the authority to make in-kind donations as an alternative, so the city may donate use of the parking lot in lieu of a rental fee.

Q: What does the city have to confirm first?
A: Per the opinion, the city must determine that the market meets the certification requirements and that the value of the donation does not exceed the statutory one-fourth mill limit.

Q: Did the AG approve anything Winona had already done?
A: No. The opinion states the office "can neither validate nor invalidate past action," so it addresses only the prospective question.

Background and statutory framework

The text of § 21-19-69:

The governing authorities of any municipality of this state, in their discretion, may donate annually out of any money in the municipal treasury, such sums as deemed advisable to support any farmers' market that is certified by the Mississippi Department of Agriculture and Commerce and operating within the municipality, not to exceed the amount that would be generated from the levy of a one-fourth (¼) mill ad valorem tax upon all taxable property in the municipality.

The discretion is at the municipal level. If the municipality chooses to support a market, the cap is the equivalent of one-fourth mill on taxable property.

The in-kind extension comes from prior AG opinions. The opinion cites Manley (May 1, 2015), Baum (Feb. 17, 2006), and Hewes (Jan. 28, 2005) for the proposition that statutory authority to donate funds is impliedly authority to make in-kind donations as an alternative.

Citations and references

Statutes:

Miss. Code Ann. § 21-19-69 (municipal authority to donate to certified farmers' markets, capped at equivalent of ¼ mill ad valorem tax)

Source

Original opinion text

November 28, 2023

R. Adam Kirk, Esq.
Attorney, City of Winona
1320A Sunset Drive
Grenada, Mississippi 38901

Re: Authority of Municipality to Donate Space for Certified Farmers' Market

Dear Mr. Kirk:

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

Question Presented

May the city of Winona donate the use of a vacant, city-owned parking lot to a certified farmers' market, or is a rental agreement for a fee required?

Brief Response

Pursuant to Mississippi Code Annotated Section 21-19-69, a municipality may donate funds out of the municipal treasury to a certified farmers' market that is operating within the municipality. We find no prohibition against a municipality donating the use of a vacant city parking lot to a certified farmers' market in lieu of a rental fee so long as the requirements of the statute are met, and the value of the donation does not exceed the amount established in the statute.

Applicable Law and Discussion

As an initial matter, this office can neither validate nor invalidate past action. To the extent that your question involves any previous action taken by the city of Winona, we are unable to respond with an official opinion.

Mississippi Code Annotated Section 21-19-69 provides:

The governing authorities of any municipality of this state, in their discretion, may donate annually out of any money in the municipal treasury, such sums as deemed advisable to support any farmers' market that is certified by the Mississippi Department of Agriculture and Commerce and operating within the municipality, not to exceed the amount that would be generated from the levy of a one-fourth (¼) mill ad valorem tax upon all taxable property in the municipality.

Our office has consistently opined that when a statute authorizes a municipality to donate funds, it is implied that the municipality has the authority to make in-kind donations as an alternative. MS AG Op., Manley at 2 (May 1, 2015) (opining that donations made in accordance with Section 21-19-65 may be made in the form of cash or in-kind services) (internal citation omitted). See also MS AG Op., Baum at 1 (Feb. 17, 2006); MS AG Op., Hewes at *2 (Jan. 28, 2005).

Accordingly, if the municipality makes the factual determinations, pursuant to Section 21-19-69, that the farmers' market meets the certification requirements and that the value of the donation does not exceed the set limit, then the municipality may donate the use of a vacant, city-owned parking lot to the farmers' market in lieu of a rental fee. Because your request deals with the expenditure of public funds, we also refer you to the Office of the State Auditor.

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

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