Stennis Institute of Government

Impact fees have been around for a while. Policy-wonks are familiar with the concept. Over half the states in the nation have developed impact fee legislation, and 4 other states have determined, by case law, that although there is no specific impact fee statute, the municipalities of these states have the legal authority to adopt impact fees. But impact fees remain illegal in Mississippi.

This was determined by the Mississippi Supreme Court in their decision, Mayor and Board of Aldermen, City of Ocean Springs, Mississippi v. Homebuilders Association of Mississippi, Inc., et al., No. 2004-CC-01278-SCT (June 15, 2006). Appellants [Ocean Springs, et al.] adopted a comprehensive plan for the city which included development impact fees . The plan called for, among other things, a plan of assessment of these development fees in order to defray the cost of capital improvements required to accommodate the proposed land development. These impact fees were to be assessed in addition to other applicable land-use fees which were currently in effect.

After the plan was adopted in Ocean Springs, the Homebuilders Association of Mississippi, Inc. [Homebuilders], together with other builders, filed a Bill of Exception claiming that the impact fees were illegal taxes and that Ocean Springs was without legal authority to impose them. The Jackson County Circuit Court agreed with the Homebuilders and Ocean Springs appealed to the Supreme Court.

While decisions of the Mayor and Board of Aldermen will not be disturbed unless the action was arbitrary, capricious, discriminatory or beyond the authority of the board, the Supreme Court agreed with the Jackson County Circuit Court that the impact fees were taxes and beyond the legal authority of the city or any city in Mississippi. The Supreme Court found, among other thins, that the State does not have a specific constitutional provision or statute regarding implementation of development impact fees either authorizing the fees or enabling legislation authorizing cities to adopt the fees. The Court further found that the Municipal Planning Statutes [Miss. Code Ann. 17-1-1, et seq] grant no authority to municipalities to adopt impact fees, nor does the Home Rule Statute [Miss. Code Ann. 21-17-5]. The Court concluded: there is no constitutional basis, legislative enactment, or common law doctrine, which empowers cities to adopt and impose development impact fees. The Court considered other jurisdictions which had considered the fact that an impact fee might not be considered a tax, but came down squarely that impact fees constitute a tax because the fees are simply a revenue-raising measure and that the fees would constitute a tax that the municipality has no current authority to assess, leaving the future squarely in the ball park of the legislature.

Ideas for discussion? Email me at lydia at sig dot msstate dot edu. Thanks for reading and have a good day.

Good day. My name is Lydia Quarles. I am a senior policy analyst with the John C. Stennis Institute of Government [SIG] at Mississippi State University. The goal of the Institute is to enhance the efficiency and effectiveness of Mississippi state and local government. One way we can assist our constituency is to share knowledge. To that end, we are beginning a blog of general legal information for state and local governments. Depending on your interest (and the schedule of other projects to which we have committed) the blog will be updated at least bi-weekly.

If you are a constituent of SIG (or even if you’re not) and have a question to raise about Mississippi state, city or county government that you’d like discussed on this blog, all you have to do is email me at lydia at sig dot msstate dot edu. Tell me what you’d like the blog’s discussion to center upon and we’ll put it out there just as soon as we can.

A little more about me…I’m a lawyer who has been in private practice for longer than I want to tell you. I’ve also served as a Judge with the Mississippi Workers’ Compensation Commission, which is an executive branch administrative agency, as well as one of the agency’s Commissioners, before coming to SIG. I’m a civil mediator who is a member of the neutrals panel of the Mississippi Supreme Court as well as a member of the neutrals panels for the United States District Courts in the Northern and Southern Districts of Mississippi. I was recently awarded the Mary E. Lawton Award from the American Bar Association for a distinguished body of work in my career at the Mississippi Workers’ Compensation Commission at the National Press Club in Washington, DC on October 26.

We at SIG hope you will enjoy the blog. We hope it will meet your needs, get your attention, capture your imagination, and make you think. It will, of course, be more successful if you provide feedback!

To give you an idea of the information you might find here, lets begin with an isssue of interest to local law enforcement: CRIMINAL CONFESSIONS OBTAINED WHILE SUBJECT IS INTOXICATED So here are the facts: Your law enforcement officer made an arrest, gave an appropriate Miranda warning prior to custodial interrogation, and elicited a confession. Is there a problem?

That depends. Intoxication of the suspect does not automatically render the confession involuntary, but the degree of intoxication is a factor that may be considered by the trial court if the suspect (defendant) seeks to suppress his statement. Morris v. State, 2003-KA-02626-COA (May 3, 2005) (Ms. Ct. App. 2005).

When your officer arrests an individual, gives the appropriate Miranda warnings, and elicits a confession, he should also be aware of critical aspects of the suspect’s mental/physical condition at the time of interrogation, including:

1. Was the suspect given a breathalyzer test or any other physical test for determining intoxication, and if so, what were the results?

2. At what time did (a) the arrest occur; (b) the test occur?

3. How much time intervened from the time of the arrest/test and the time of the confession?

4. What, if anything, did the suspect ingest during this period?

5. What actions did the suspect take which led the officer to believe that the suspect was coherent and capable of making a knowing and willful confession?

The officer should also be able to describe the rationality/irrationality of the suspect’s behavior at the time of the confession. (Hopefully, it will be rational behavior that the officer will be describing, if that’s a hint.) Remember that so long as the officer can provide reasonable facts to suggest that, whether or not the suspect was intoxicated, he was still operating rationally and had cognizance of his actions, if the judge finds the confession to be voluntarily made and admissible (not subject to suppression), the judge’s finding will not be disturbed on appeal unless an incorrect legal standard was applied, manifest error was committed, or the decision was contrary to the overwhelming weight of evidence. It is the officer’s job to provide ample credible evidence to support the court’s decision that the suspect was able to make a voluntary decision to confess, despite some level of intoxication. This is a legal burden your officer can live with. Le v. State, 2002-DP-01855-SCT (April 28, 2005) (Miss. Sup. Ct. 2005).

Thanks for reading. Have a good day.