                             IN THE SUPREME COURT OF MISSISSIPPI
                                      NO. 94-CA-00555-SCT
CITY OF JACKSON, MISSISSIPPI
v.
STATE OF MISSISSIPPI AND THE MISSISSIPPI VETERANS MEMORIAL STADIUM
COMMISSION, MISSISSIPPI STATE DEPARTMENT OF FINANCE AND
ADMINISTRATION AND M. BENNETT CHOTARD
DATE OF JUDGMENT:                                    05/05/94
TRIAL JUDGE:                                         HON. WILLIAM F. COLEMAN
COURT FROM WHICH APPEALED:                           HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                             JANE E. TUCKER
                                                     WILLIAM A. GOWAN, JR.
ATTORNEYS FOR APPELLEES:                             OFFICE OF THE ATTORNEY GENERAL
                                                     BY: RICKEY T. MOORE
                                                          MARK D. MORRISON
                                                          GENE D. BERRY
NATURE OF THE CASE:                                  CIVIL - OTHER
DISPOSITION:                                         AFFIRMED - 6/13/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                      7/8/96




      BEFORE SULLIVAN, P.J., McRAE AND ROBERTS, JJ.


      ROBERTS, JUSTICE, FOR THE COURT:


                                              INTRODUCTION

¶1. The case before the Court today involves a dispute over the ability of the City of Jackson, Mississippi
to enforce local zoning ordinances upon state owned land, Mississippi Veterans Memorial Stadium, located
within the city limits where the legislature has specifically promulgated legislation regarding the use of said
state property. See Miss. Code Ann. Section 55-23-11. We agree with the circuit court's holding that the
City lacked standing to bring the declaratory judgment involved in this case. We find that the City lacked the
proper requirements of standing to pursue this action as it is in contravention of the intent of the legislature in
promulgating specific legislation regarding the stadium and affirm the trial court on that basis. Accordingly,
we need not address the other issues.

                                       STATEMENT OF THE CASE
¶2. The procedural history of this case began with the filing of Mayor Kane Ditto's [hereinafter the City] five
count Complaint For Declaratory Relief And Other Relief in the Circuit Court of the First Judicial District of
Hinds County, Mississippi against the State of Mississippi, the Veterans Memorial Stadium Commission
[hereinafter Commission], Mississippi State Department of Finance and Administration and M. Bennett
Chotard [hereinafter Chotard]. Said Complaint was filed in his official capacity as Mayor of the City of
Jackson, Mississippi and on behalf of the citizens of Jackson, Mississippi as interested parties and
taxpayers of the State of Mississippi.

¶3. The lawsuit sought declaratory relief primarily concerning the rights of the City of Jackson to enforce
zoning ordinances on land which was the subject of a Project Development Agreement [hereinafter
Agreement] between the Mississippi Veterans Memorial Stadium Commission and M. Bennett Chotard.
Specifically, the Complaint contained five counts. Count I alleged that the Agreement violated the
Separation of Powers Doctrine. Count II alleged that if the Agreement was allowed to proceed, the citizens
of Jackson would be adversely affected because (a) a foreseeable danger to the health and safety of
persons traveling on the streets or otherwise operating their vehicles upon the subject property in the areas
of North State Street would constitute a hazard and nuisance; (b) a foreseeable erosion and destruction of
the aesthetic quality of the environment surrounding the Stadium would occur; and (c) violation of the City
zoning ordinances. Count III alleged that Miss. Code Ann. § 55-23-11 is unconstitutional in violation of
Article 4 § 90 of the Mississippi Constitution of 1890. Count IV alleged that the Agreement was a joint
venture or partnership between the parties and thus void as contrary to public policy prohibiting such
between a public body and private interest. Count V was that unless the trial court intervened, there was no
adequate remedy at law to prevent the general public, as citizens and taxpayers, from injury and damage.

¶4. The Commission and Chotard filed a Motion to Dismiss the City's complaint for failure to state a claim
upon which relief could be granted and as barred by the doctrine of sovereign immunity. A Memorandum in
support thereof was filed by Chotard, which the City opposed.

¶5. Upon considering the briefs and argument of both parties, Judge William F. Coleman entered his
Judgment of Dismissal which reads as follows.

      THIS CAUSE came for hearing on March 14, 1994 on the Motions of M. Bennet Chotard,
      Mississippi Veterans Memorial Stadium Commission and the Mississippi State Department of
      Finance and Administration to dismiss the plaintiff's complaint and the Court, having heard the
      arguments of counsel and having considered the briefs filed by the plaintiff and the defendants, finds
      that the City of Jackson lacks standing to bring the causes of action set forth in its complaint, that
      Counts I, III, IV and V fail to state a claim upon which relief can be granted because, as a matter of
      law, there is no conceivable set of facts upon which the City can prevail on the legal theories set forth
      in said Counts of Complaint and that Count II of the plaintiff's complaint is barred by the Doctrine of
      Sovereign Immunity and, therefore, that the Plaintiff's complaint should be dismissed, with prejudice;

(emphasis added)

¶6. Aggrieved by the lower court's decision to grant the Commission's motion, the City appeals requesting
review of the following issue.

      WHETHER THE TRIAL COURT ERRED IN DISMISSING THE INSTANT LAWSUIT
      BECAUSE THE CITY IN THIS CASE HAS STANDING TO HAVE THE LOWER
      COURT DECLARE THAT THE PARTIES TO THE DEVELOPMENT AGREEMENT
      ARE BOUND BY CITY ZONING ORDINANCES.

¶7. The Commission submitted similar, yet different arguments in its brief, but is not counter-appealing. The
Commission argues the issues as follows.

      I. SECTION 55-23-11 IS A CONSTITUTIONAL DELEGATION OF AUTHORITY BY
      THE LEGISLATURE, NOT SUBJECT TO LEGAL CHALLENGE BY THE CITY OF
      JACKSON.

      A. COMMISSION'S LEASING AUTHORITY DOES NOT VIOLATE THE
      SEPARATION OF POWERS DOCTRINE.

      B. THE AGREEMENT IS NOT A JOINT VENTURE IN VIOLATION OF SECTION 258
      OF THE MISSISSIPPI CONSTITUTION.

      C. SECTION 55-23-11 DOES NOT VIOLATE SECTION 90 OF THE MISSISSIPPI
      CONSTITUTION.

      II. THE CITY HAS NO STANDING OR LEGAL RIGHT TO PREVENT THE LEASING
      OF STADIUM PROPERTY.

      A. THE LEGISLATURE HAS MANIFESTED ITS INTENT THAT THE CITY OF
      JACKSON NOT HAVE THE POWER, AUTHORITY, OR STANDING TO BRING THE
      INSTANT ACTION.

      B. THE CITY'S CLAIMS ARE BARRED BY SOVEREIGN IMMUNITY.

      III. COUNT V EPITOMIZES THE CITY'S FAILURE TO STATE A CLAIM UPON
      WHICH RELIEF CAN BE GRANTED.

      A. NO REMEDY EXISTS AT LAW OR IN EQUITY AS THE CITY HAS NOT AND
      WILL NOT SUFFER ANY INJURY OR DAMAGES.

¶8. The City's only argument in its reply brief is the following.

      THE APPELLEE'S RELIANCE ON THE CITY OF JACKSON V. MISSISSIPPI STATE
      BUILDING CASE IS MISPLACED.

                                      STATEMENT OF THE FACTS

¶9. On July 13, 1993, the Commission entered into a Project Development Agreement with developer M.
Bennett Chotard for the purpose of leasing two parcels of land surrounding the Mississippi Veterans
Memorial Stadium for a period not exceeding twenty-five years.(1) The Agreement was entered into
pursuant to Mississippi Code Ann. Section 55-23-11(2).

¶10. The City argued that Chotard and the Commission should have to comply with its "special use" zoning
restriction despite the "full power and authority" granted to it by the legislature in Section 55-23-11. The
Commission's Agreement with Chotard was that the property was going to be and could be developed as
commercial property without any additional expense because "such city zoning is not applicable to state
property." The City maintained that if the Commission was able to develop the property commercially, that
such development would be "hazardous to the citizens of the City of Jackson" and "would destroy the
aesthetic quality of the environment." The Commission and Chotard maintained that their Agreement was
lawfully and legislatively authorized.(2) Accordingly, the Commission and Chotard submit that the lower
court's dismissal with prejudice should be affirmed in toto.

                                          DISCUSSION OF ISSUES


      WHETHER THE TRIAL COURT ERRED IN DISMISSING THE INSTANT LAWSUIT
      BECAUSE THE CITY IN THIS CASE HAS STANDING TO HAVE THE LOWER
      COURT DECLARE THAT THE PARTIES TO THE DEVELOPMENT AGREEMENT
      ARE BOUND BY CITY ZONING ORDINANCES.

      II. THE CITY HAS NO STANDING OR LEGAL RIGHT TO PREVENT THE LEASING
      OF STADIUM PROPERTY.

      A. THE LEGISLATURE HAS MANIFESTED ITS INTENT THAT THE CITY OF
      JACKSON NOT HAVE THE POWER, AUTHORITY, OR STANDING TO BRING THE
      INSTANT ACTION.

      B. THE CITY'S CLAIMS ARE BARRED BY SOVEREIGN IMMUNITY.

¶11. The threshold issue in this case is whether or not the City has constitutional standing to challenge the
Agreement. The lower court held that the City lacked standing on apparently all counts in the complaint.
Counts I, III, IV, and V were determined to "fail to state a claim upon which relief could be granted
because, as a matter of law, there is no conceivable set of facts upon which the City can prevail" on the
legal theories in said counts. Count II was held to be "barred by the Doctrine of Sovereign Immunity."
Accordingly, the City's complaint was dismissed with prejudice.

¶12. We agree with the circuit court's holding that the City lacked standing to bring the declaratory
judgment involved in this case. We find that the City lacked the proper requirements of standing to pursue
this action as it is in contravention of the intent of the legislature in promulgating specific legislation regarding
the stadium and affirm the trial court on that basis. Accordingly, we need not address the other issues.

                                                 CONCLUSION

¶13. The City of Jackson does not have standing; accordingly, the trial court's dismissal is affirmed.

¶14. JUDGMENT IS AFFIRMED.

SULLIVAN, P.J., PITTMAN, McRAE AND SMITH, JJ., CONCUR. PRATHER, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, C.J., BANKS AND
MILLS, JJ.
      PRATHER, PRESIDING JUSTICE, DISSENTING:


¶15. Finding the majority opinion to be in clear conflict with prior decisions of this Court, I respectfully
dissent. In my view, the majority is incorrect in holding that the City of Jackson did not have standing to sue
to enforce its local zoning laws and ordinances.

¶16. This Court noted in State ex rel. Moore v. Molpus, 578 So.2d 624, 632 (Miss. 1991), that "[p]
arties may sue or intervene when they assert a colorable interest in the subject matter of the litigation or
experience an adverse effect from the conduct of the defendant, or as otherwise authorized by law".
(emphasis added) quoting Harrison County v. City of Gulfport, 557 So.2d 780, 782 (Miss. 1990)).
Thus, in order to have standing, the City must merely show that it has some "colorable interest in the subject
matter of the litigation." It can not be validly argued that a City does not have a "colorable interest" in
enforcing its zoning laws with regard to property within its city limits. Indeed, I find it hard to imagine a
situation in which a city could have a greater interest than with regard to real property which is located in the
heart of the city.

¶17. In addition to the "colorable interest" requirement, the City will be found to have standing if it can show
that it has experienced an "adverse effect" from the conduct of the defendants or if the City's cause of
action is "otherwise authorized by law." As will be seen, prior decisions of this Court have specifically
granted the City authorization by law to bring the present action to enforce its zoning laws. Moreover,
decisions of this Court indicate that a lenient standard of standing applies when parties seek to challenge
governmental action in this State. In Fordice v. Bryan, 651 So.2d 998, 1003 (Miss. 1995), this Court
noted that:

      Under article III, § 2 of the United States Constitution, the federal courts limit review to actual "cases
      and controversies." Such restrictive language is not found in the Mississippi Constitution. "Therefore,
      we have been more permissive in granting standing to parties who seek review of governmental
      actions." citing Van Slyke v. Board of Trustees, 613 So.2d 872, 875 (Miss. 1993).

Based on this rather lenient standard, it is clear that the City does have standing to bring the present action
to enforce its zoning laws.

¶18. Quite apart from the case law dealing with standing, this Court has entertained the appeals of
municipalities on claims very similar to the present one on several occasions, and, in so doing, has impliedly
accepted that said municipalities have standing to contest the actions of the state agencies in question. See
City of Jackson v. MS State Building Commission, 350 So.2d 63 (Miss. 1977); City of Hattiesburg
v. Region XII Commission on Mental Health and Retardation, 654 So.2d 516 (Miss. 1995).
Assuming, arguendo, that the issue of standing was not considered in those cases, the third basis for
standing as set forth in Molpus is met in the present case, given that the rulings of this Court in Robinson
and Hattiesburg expressly authorize municipalities to enforce reasonable zoning ordinances on state
agencies.

¶19. Molpus grants a plaintiff standing to sue where "otherwise authorized by law," and this Court has
clearly granted municipalities the right to enforce "reasonable zoning ordinances" in the courts of this State.
It would be nonsensical for this Court to unanimously declare in Hattiesburg that a municipality has the
right to enforce "reasonable zoning ordinances," but to later find that the City of Jackson does not even have
standing to bring such a suit in the present case. On trial below, the trier of fact could justifiably reach
differing results with regard to the present case from those in Hattiesburg and Robinson, but there is no
justification for finding that the City does not have the basic standing to attempt to assert its own zoning laws
in a manner which this Court has specifically endorsed in the past.

¶20. The only basis on which the present case could conceivably be distinguished from Robinson and
Hattiesburg with regard to the standing issue is based on the fact that Miss. Code Ann. § 55-23-5(a)
(1989) provides that one of the five members of the Stadium Commission shall be appointed by the mayor
of Jackson. The Commission argues that said fact indicates that the Legislature intended that the City's sole
voice with regard to the Commission should be through this appointment, and that the legislature thus
intended that the City have no standing to contest the Commission's actions. This argument, however, is
totally devoid of any basis in law, statutory or otherwise.

¶21. There is nothing within Miss. Code Ann. § 55-23-5 which in any way addresses the issue of standing
to sue, and it is quite clear that this rather lengthy statute was written to ensure that the Commission is
composed of competent individuals and to ensure that the terms and responsibilities of said individuals are
clearly set forth. A reading of this statute also reveals an attempt to ensure a geographically and politically
diverse Commission, with two of the members being required to come from outside Hinds county, one
required to be appointed by the Governor from within Hinds County, and one member to be selected by
the Board of Trustees of Higher Learning.

¶22. It is in this context that the requirement that one of the members come from Jackson and be appointed
by the mayor is set forth, and not by any stretch of the imagination in the context of the City's standing to
sue. Under the rationale of the Commission, the State of Mississippi, the Board of Trustees, and Hinds
County would be all precluded from having standing to sue the Commission based on the fact that they are
provided with representation on the Commission. The remainder of § 55-23-5 is concerned with such
matters as the compensation, terms of tenure, and qualifications of the commission members. Any legislation
purporting to deny a municipality the standing to sue to enforce its own zoning ordinances would likely be
unconstitutional, but there is no indication that § 55-23-5 was in any way intended to limit the City's
standing to sue.

¶23. Having stated that I consider the City of Jackson to have standing, the question then arises as to
whether the lower court was correct in dismissing the five counts of the City's complaint. A holding by this
Court that the City has standing to sue would not serve to revive the case, given that the lower court also
dismissed all of the Counts in the City's complaint on bases unrelated to considerations of standing.

¶24. The City set forth a number of legal theories for challenging the actions of the Commission with regard
to the lease in question. Count I asserts that the Project Development Agreement ("project") is
unconstitutional as a violation of the separation of powers as set forth in Article 1, Section 1 of the
Mississippi Constitution. Count III asserts that the "aforementioned legislation" (presumably referring to
Miss. Code Ann. § 55-23-11) is "invalid and unconstitutional in its application" as an "alienation" of
property held "in trust for the public". Count IV asserts that the project in question involves a "joint venture"
between a "public body and a private interest, thereby rendering said agreement void as it is contrary to
public policy and laws of the State of Mississippi". Count V merely states that "Plaintiff further charges that
there is no adequate remedy at law, and unless this Honorable Court intervenes in their behalf, they will, as
citizens and taxpayers, and members of the public in general, sustain injury and damage, as aforesaid."
¶25. The City cited no case law precedent before the trial court with regard to the aforementioned issues,
and the City's brief before this Court does not even address these issues on appeal. Accordingly, the lower
court should be affirmed with regard to the dismissal of these Counts.

¶26. With regard to Count II, the lower court did not hold that said count failed to state a claim upon which
relief might be granted, but rather dismissed this count as being barred by the doctrine of sovereign
immunity. In Count II, the City asserts that the project, if allowed to be completed, would constitute a
"foreseeable danger" to the surrounding community, both physically and aesthetically, and would violate the
zoning ordinances of the City of Jackson. In granting the State's motion to dismiss, the lower court
apparently accepted the State's argument in its memorandum in support of dismissal, wherein it argued that
Miss. Code Ann. § 11-46-3 precluded the City from recovering under Count II on the basis of the doctrine
of sovereign immunity.

¶27. The State's argument and the lower court's basis for dismissal, however, were both directly refuted by
this Court in Robinson and Hattiesburg. In Hattiesburg, the Mental Health Commission similarly argued
that the City of Hattiesburg was barred by the doctrine of sovereign immunity from enforcing its zoning
ordinances and building codes on the Mental Health Commission, given that said commission was a
"subdivision of the state of Mississippi." Hattiesburg, 654 So.2d at 517. This Court rejected this argument,
noting that we had held in Robinson that:

      [T]he city was also an arm of the sovereign, with the right and duty to govern non-educational
      matters, including public safety and, therefore, it could enforce its off street parking ordinance with
      respect to the school district property. (citing Robinson, 467 So.2d at 917). Thus, Robinson stands
      for the proposition that although it is recognized that both authorities are vested with some powers
      regarding construction and the selection of building sites, reasonable zoning restrictions aimed at public
      safety and the elimination of public nuisances may be enforced. The chancery court erred in
      concluding otherwise.

Hattiesburg, 654 So.2d at 518.

¶28. Robinson and Hattiesburg are directly on point and leave no doubt whatsoever that Count II of the
City's complaint is not barred by the doctrine of sovereign immunity. Moreover, as discussed earlier, the
fact that this Court not only considered, but also granted, very similar appeals from two other municipalities
clearly indicates that this Court did not find said cities to lack standing to bring the complaints in question.
Accordingly, I would reverse the lower court with regard to the finding that the City did not have standing
and with regard to the dismissal of Count II and remand to the lower court for trial on Count II of the City's
complaint.

¶29. Having stated my opinion that Robinson and Hattiesburg are controlling in the present case with
regard to the issues of standing and sovereign immunity, I wish to emphasize that I neither endorse nor
oppose a similar result being reached in the present case on remand as was reached in the aforementioned
cases. Further, as discussed below, past decisions of this Court illustrate that the majority's opinion is in fact
based on considerations which are relevant in a trial on the merits of the case, rather than on appeal from
the granting of a motion to dismiss.

¶30. This Court's holding in Robinson served to limit this Court's finding in City of Jackson v. MS State
Building Commission (that the Building Commission had been granted plenary power by statute and did
not have to follow municipal ordinances) to the facts of said case. Robinson, 467 So.2d at 917.
Robinson, however, obviously did not preclude this Court or a lower court from finding in the future that
the legislature has granted plenary power to a given state agency. This Court stated in Robinson that:

      The municipal school district does not enjoy the plenary power in the construction of schools that was
      granted to the Building Commission. While the school district is empowered to locate and cause to be
      constructed school buildings to meet the needs of the district, ... it must obtain the approval of the
      location, plans, and specifications from the Educational Finance Commission to receive state and local
      funds for the construction of those facilities. Id.

Thus, Robinson stands in part for the proposition that not all state agencies acting pursuant to statutory
authority have plenary power, but this Court did not hold in said opinion that the Building Commission is the
only state agency that may be vested with plenary power.

¶31. Even assuming that a state agency does have plenary power, Hattiesburg indicates that the rather
stringent holding in City of Jackson v. MS State Building Commission that the Building Commission did
not have to comply in any manner with local zoning ordinances, reasonable or otherwise, only has
precedential value with regard to that commission. Nothing in Hattiesburg, however, indicates that this
Court considers issues regarding plenary power to be irrelevant in determining whether or not a given
zoning ordinance should be enforced on a state agency. I would note that, in Hattiesburg, the Mental
Health Commission was granted power to choose facilities in areas which the State had no ownership
interest and the location of which were unknown to the legislature. As such, this Court was not faced with a
specific legislative grant of power with regard to specific, state-owned property as in the present case.

¶32. I would submit that, in cases in which a state agency has been found to have been granted plenary
power, municipal laws and zoning ordinances should be enforced against said agency only if enforcement
thereof would not be inconsistent with the intent of the legislature as expressed in the statute. This Court in
Hattiesburg rightfully backed away from the complete deference shown to state statutes in City of
Jackson v. MS State Building Commission, but municipal zoning ordinances should nevertheless not be
enforced against a state agency if the enforcement thereof would unduly interfere with the agency's exercise
of plenary power as specifically set forth in a state statute.

¶33. A zoning ordinance which is "reasonable" for ordinary purposes should nevertheless not be enforced
against a state agency which has been granted plenary power if its enforcement would be in direct
contravention of a state statute or of the intent of the legislature in passing said statute. At the same time, I
see no reason why those state agencies which are granted plenary power should not be obligated to comply
with reasonable local ordinances so long as compliance with said ordinances is consistent with the intent of
the legislature in granting said plenary power.

¶34. In reading the majority opinion, it appears that the majority shares at least some of the views
expressed above. In setting forth their opinion, the majority held that:

      We find that the City lacked the proper requirements of standing to pursue this action as it is in
      contravention of the intent of the legislature in promulgating specific legislation regarding the stadium
      and affirm the trial court on that basis.

¶35. Given the "full power" granted to the Commission by § 55-23-11 with regard to leasing specific, state-
owned property, I share the majority's conclusion that the City may be precluded from enforcing the zoning
laws in question. The City should only be so precluded, however, if it is so determined in the context of a
trial on the merits based on the case law set forth by this Court in Robinson, Hattiesburg, and similar
cases. A finding that the City's enforcement of its zoning laws is contrary to the intent of the legislature in
granting the Commission plenary power would be a basis for the Commission's prevailing on the merits of
the case below. It is emphatically not, however, a basis for denying the capital city of this State the basic
standing to come into court and attempt to enforce its own zoning laws within its own city limits in a manner
in which this Court has repeatedly authorized municipalities to do. Accordingly, I dissent.

LEE, C.J., BANKS AND MILLS, JJ., JOIN IN THIS OPINION.


1. The two parcels of land are approximately eight and three acres respectively.

2. The Agreement was approved by the Department of Finance and Administration as required by §55-23-
11(3).
