MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Ports and Marine Resources

By: Senator(s) Moffatt, Robertson

AN ACT TO AUTHORIZE THE CREATION OF SHORELINE AND BEACH PRESERVATION DISTRICTS; TO PROVIDE FOR CREATION OF THE DISTRICT BY PETITION OF LANDOWNERS; TO REQUIRE PUBLICATION OF A NOTICE OF INTENT TO CREATE A DISTRICT AND TO REQUIRE A PUBLIC HEARING; TO PROVIDE FOR A REFERENDUM ON THE CREATION OF THE DISTRICT; TO AUTHORIZE THE PAYMENT OF COSTS FOR CREATION OF THE DISTRICT; TO PROVIDE FOR APPOINTMENT OF A BOARD OF COMMISSIONERS OF THE DISTRICT AND FOR THEIR TERMS OF OFFICE AND COMPENSATION; TO AUTHORIZE THE BOARD OF COMMISSIONERS TO EXERCISE CERTAIN POWERS AND DUTIES; TO AUTHORIZE THE DISTRICT TO ISSUE NEGOTIABLE SPECIAL IMPROVEMENT BONDS FOR PROJECTS; TO AUTHORIZE THE BOARD OF SUPERVISORS TO EXERCISE THE POWER OF EMINENT DOMAIN UPON REQUEST OF THE BOARD OF COMMISSIONERS; TO AUTHORIZE THE BOARD OF SUPERVISORS TO LEVY AN AD VALOREM TAX NOT TO EXCEED FOUR (4) MILLS ON TAXABLE REAL PROPERTY IN THE DISTRICT AND TO MAKE SPECIAL ASSESSMENTS ON PROPERTY IN THE DISTRICT; TO PROVIDE FOR THE CALCULATION OF ANY SPECIAL ASSESSMENTS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Except as otherwise provided in this section, any contiguous area situated within any county of the state located along the Mississippi Gulf Coast, and not being situated within the corporate boundaries of any existing municipality, and experiencing shoreline and beach erosion and other related problems, may become incorporated as a shoreline and beach preservation district in the manner set forth in the following sections. The purpose of the district shall be to provide for the planning, design, construction, operation, maintenance and improvement of shoreline and beach improvement projects, including habitat restoration projects. This act shall not apply to Harrison County or Hancock County, Mississippi.

SECTION 2. A petition for the incorporation of a shoreline and beach preservation district may be submitted to the board of supervisors of a county, referred to in this act as "board of supervisors," signed by not less than twenty-five (25) owners of real property residing within the boundaries of the proposed district. The petition shall include: (a) a statement of the necessity for the creation of the proposed district; (b) the proposed corporate name for the district; (c) the proposed boundaries of the district, which shall not include any property used for industrial purposes, unless the owner of that property submits a written request to the board of supervisors to be included in the district; (d) an estimate of the cost of special improvement projects to be conducted and maintained by the district; however the estimate shall not serve as a limitation upon the financing of any project; (e) a statement of whether or not the board of supervisors of the county shall exercise the authority to levy the tax outlined in Section 14 of this act; and (f) a statement of whether or not the board of supervisors of the county shall exercise the authority to make assessments as outlined in Section 15 of this act. The petition shall be signed in person by the petitioners, with their respective residence addresses. The petition shall be accompanied by a sworn statement of the person or persons circulating the petition stating that the person or persons witnessed the signature of each petitioner, that each signature is the signature of the person it purports to be, and that, to the best of the person's or persons' knowledge, each petitioner was at the time of signing an owner of real property within and a resident of the proposed district.

SECTION 3. (1) Upon the filing of a petition, the board of supervisors shall fix a time and place for a public hearing upon the question of the public convenience and necessity of the incorporation of the proposed district. The date fixed for the hearing shall be not more than thirty (30) days after the filing of the petition. The time, date and location of the hearing, the proposed boundaries of the district, and the purpose of the hearing shall be set forth in a notice to be signed by the clerk of the board of supervisors. The notice shall be published in a newspaper having general circulation within the proposed district once a week for at least three (3) consecutive weeks before the date of the hearing. The first publication of the notice shall be made not less than twenty-one (21) days before the date of the hearing and the last publication shall be made not more than seven (7) days before the date of the hearing.

(2) If, at the public hearing, the board of supervisors finds (a) that the public convenience and necessity require the creation of the district and (b) that the creation of the district is economically sound and desirable, then the board of supervisors shall adopt a resolution making those findings and declaring its intention to create the district on a date to be specified in the resolution. The resolution shall also designate the name of the proposed district, define its territorial limits which shall be fixed by the board of supervisors pursuant to the hearing, and state whether or not the board of supervisors shall levy the ad valorem tax authorized in Section 14 of this act and whether or not the board of supervisors proposes to make special assessments against benefited properties as outlined in Section 15 of this act.

SECTION 4. (1) A certified copy of the adopted resolution shall be published in a newspaper having a general circulation within the proposed district once a week for at least three (3) consecutive weeks before the date specified in the resolution as the date upon which the board of supervisors intends to create the district. The first publication of the notice shall be made not less than twenty-one (21) days before the date specified, and the last publication shall be made not more than seven (7) days before the date.

(2) If twenty percent (20%) or one hundred fifty (150), whichever is less, of the qualified electors of the county residing within the proposed district file a written petition with the board of supervisors on or before the date specified in the resolution under subsection 1 of this section protesting the creation of the district, the board of supervisors shall call an election on the question of the creation of the district. The election shall be held and conducted by the election commissioners of the county, as far as is practicable in accordance with the general laws governing elections. The election commissioners shall determine which of the qualified electors of the county reside within the proposed district, and only those qualified electors as reside within the proposed district shall be entitled to vote in the election. Notice of the election setting forth the time, place or places, and purpose of the election shall be published by the clerk of the board of supervisors. The notice shall be published for the time and in the manner provided in Section 3 of this act for the publication of the resolution of intent. The ballot to be prepared for and used at the election shall be in substantially the following form:

"FOR CREATION OF __________ DISTRICT: ( )

AGAINST CREATION OF __________ DISTRICT: ( )."

Voters shall vote by placing a cross mark (x) or check mark (_) opposite their choice.

SECTION 5. If no petition requiring an election is filed or if three-fifths (3/5) of those voting in the election provided in Section 4 of this act vote in favor of the creation of the district, the board of supervisors shall adopt a resolution creating the district as described in the resolution of intent.

SECTION 6. If the creation of the district is initiated by petition, the board of supervisors may bear the costs of meeting the requirements of this act or may require the parties filing the petition to bear the costs. The board of supervisors may require the execution of a cost bond by the parties filing the petition. The bond shall be in an amount and with good sureties to guarantee the payment of any costs.

SECTION 7. Any party having an interest in the subject matter and aggrieved or prejudiced by the findings and adjudication of the board of supervisors may appeal to the circuit court of the county in the manner provided by law for appeals from orders of the board of supervisors. However, if no appeal is taken within fifteen (15) days after the date of the adoption of the resolution creating the district, the creation of the district shall be final and shall not be subject to attack in any court after that time.

SECTION 8. Beginning on the date of the adoption of the resolution creating a district, the district shall be a public corporation in perpetuity under its corporate name and shall, in that name, be a body politic and corporate with power of perpetual succession.

SECTION 9. (1) The powers of a district shall be vested in and exercised by a board of commissioners consisting of five (5) members to be appointed by the board of supervisors from a list of at least fifteen (15) candidates submitted by the supervisor in whose district the shoreline and beach preservation district is located. If the shoreline and beach preservation district is located in more than one (1) supervisors district, the supervisors in whose districts the shoreline and beach preservation district is located shall submit a list of at least fifteen (15) candidates mutually agreed upon by such supervisors. The members of the board of commissioners shall be landowners or residents of the district and shall be at least twenty-five (25) years of age and of sound and disposing mind and judgement. Upon their initial appointment, one (1) of the commissioners shall be appointed for a term of one (1) year; one (1) for a term of two (2) years; one (1) for a term of three (3) years; one (1) for a term of four (4) years; and one (1) for a term of five (5) years. After expiration of the initial appointments, each commissioner shall be appointed and shall hold office for a term of five (5) years. Any vacancy occurring on the board of commissioners shall be filled by the board of supervisors at any regular meeting of the board of supervisors in the same manner as original appointments are made. The board of supervisors may fill all unexpired terms of any commissioner.

Notwithstanding the appointive authority granted in this section to the board of supervisors, its legal and actual responsibilities, authority and function, subsequent to the creation of a district, shall be specifically limited to the appointive function and responsibilities outlined in Sections 11, 14 and 15 of this act. The operation, management, abolition or dissolution of a district, and all other matters in connection therewith, shall be vested solely and only in the board of commissioners to the specific exclusion of the board of supervisors, and the abolition, dissolution or termination of a district shall be accomplished only by unanimous resolution of the board of commissioners.

(2) The board of commissioners shall organize by electing one of its members as chairman and another as vice-chairman. The chairman shall preside at all meetings of the board and act as the chief executive officer of the board and of the district. The vice-chairman shall act in the absence or disability of the chairman. The board also shall elect and fix the compensation of a secretary-treasurer who may or may not be a member of the board. The secretary-treasurer shall keep all minutes and records of the board and safely keep all funds of the district. The secretary-treasurer shall execute a bond, payable to the district, in a sum and with security as shall be fixed and approved by the board of commissioners.

(3) Each person appointed as a commissioner, before entering upon the discharge of the duties of the office, shall execute a bond payable to the State of Mississippi in the penal sum of Ten Thousand Dollars ($10,000.00) conditioned that the person will faithfully discharge the duties of the office. Each bond shall be approved by and filed with the clerk of the board of supervisors.

(4) Each commissioner shall take and subscribe to an oath of office prescribed in Section 268, Mississippi Constitution of 1890, before the Chancery Clerk of the county in which the district is located, that the person will faithfully discharge the duties of the office of commissioner. The oath shall be filed with the Chancery Clerk and preserved with the official bond.

(5) A majority of the membership of the board of commissioners shall constitute a quorum. Except as otherwise required under this act, all official acts of the board of commissioners shall require a majority vote of the quorum.

(6) The board of commissioners may receive per diem compensation, if approved by the board of supervisors, in the same manner provided to officers of state boards, commissions and agencies in Section 25-3-69, Mississippi Code of 1972. However, the per diem compensation shall not exceed Two Hundred Dollars ($200.00) per month and shall not entitle any member of the board of commissioners to receive or be eligible for any state employee group insurance, retirement or other fringe benefits.

SECTION 10. (1) Any district created under this act, acting by and through the board of commissioners of the district as its governing authority, shall have the following powers and duties:

(a) To sue and be sued;

(b) To adopt an official seal with which to attest the official acts and records of the board and district;

(c) To acquire by purchase, gift, devise and lease or any other mode of acquisition, other than by eminent domain, hold and dispose of real and personal property of every kind inside or outside the district;

(d) To make and enter into contracts, conveyances, mortgages, deeds of trust, bonds, leases or contracts for financial advisory services;

(e) To incur debts, to borrow money, to issue negotiable special improvement bonds, and to provide for the rights of the holders of those bonds;

(f) To fix, maintain, collect and revise charges and assessments for services rendered by or through the district;

(g) To pledge all or any part of the revenues of the district to the payment of its obligations;

(h) To make any covenants in connection with the issuance of bonds or to secure the payment of bonds that a private business corporation can make under the general laws of the state;

(i) To use any right-of-way, public right-of-way, easement, or other similar property or property rights held by the state or any political subdivision of the state necessary or convenient in connection with any project conducted by the district; however, the governing body of the political subdivision must first consent to the use;

(j) To enter into agreements with state and federal agencies for loans, grants, grants-in-aid, and other forms of assistance including, but not limited to, participation in the sale and purchase of bonds;

(k) To be deemed to have the same status as counties and municipalities with respect to payment of sales taxes on purchases made by the district;

(l) To do all acts necessary, proper or convenient in the exercise of the powers granted under this act;

(m) To contract with the United States of America, or any agency of the United States of America, the State of Mississippi, or any political subdivision of the State of Mississippi, or any agency, commission, authority, board or other entity thereof, or any municipality or municipalities, for any purpose under this act; and

(n) To contract with any person, partnership, corporation or other entity for the planning, design, construction, operation, maintenance or improvement of any project of the district, upon any terms, conditions and covenants as may be agreed upon by the contracting parties.

(2) Any district created under this act shall be vested with all the powers necessary and requisite for the accomplishment of the purpose for which the district is created. No enumeration of powers in this section shall be construed to impair or limit any general grant of power contained in this section nor to limit any grant to a power or powers of the same class or classes as those enumerated.

SECTION 11. The board of supervisors may, upon petition by the board of commissioners of the district, exercise the power of eminent domain on behalf of the district wherever and whenever public necessity and convenience so requires.

SECTION 12. (1) The district may issue negotiable special improvement bonds to provide funds for the purpose of planning, design, construction, operation, maintenance or improvement of any project of the district, including acquisition of land. The bonds shall be payable primarily from special assessments authorized in Section 15 of this act and, if provided in the proceedings authorizing the bonds, the avails of the ad valorem tax levy authorized in Section 14 of this act. In addition, if provided in the proceedings authorizing the bonds and agreed to by resolution of the board of supervisors authorizing the board of commissioners to make that pledge, the bonds shall also be payable from the avails of the ad valorem tax levy provided for in subsection (2) of this section, or from any combination of monies from those special assessments and tax levies. The bonds may be issued without an election being held upon the question of their issuance and without the publication of any notice of intention to issue the bonds. The board of commissioners of the district shall issue bonds of the district by resolution spread upon the minutes of the board. The bonds shall contain covenants and provisions, be executed, bear interest at the rate or rates not to exceed fourteen percent (14%) per annum, be in denomination or denominations, be payable, both as to principal and interest, at the place or places, mature at the time or times not exceeding twenty-five (25) years from their date of issuance, as shall be determined by the board of commissioners and set forth in the resolution under which the bonds are issued. However, any bonds which are secured by a pledge of special assessments shall mature at the time or times not exceeding the time period over which the special assessments are payable, as determined by the board of commissioners under Section 15 of this act. Notwithstanding any provision of general law to the contrary, any bonds and interest coupons issued under this act shall possess all of the qualities of negotiable instruments, and the bonds, premium, if any, and interest thereon shall be exempt from all state, county, municipal and other taxation under the laws of the State of Mississippi. Any bonds issued under the authority of this act may be refunded in the manner provided in this act upon a finding by the board of commissioners that the refunding is in the public interest. Bonds for the improvement or extension of any structures or facilities of the district may be included with any refunding bonds. The bonds may be sold without the necessity of advertising for bids and may be sold by negotiated private sale and on any terms, conditions and covenants as may be agreed to by and between the issuing authority and the purchasers of the bonds. The total amount of bonds issued under this act shall not exceed One Million Dollars ($1,000,000.00).

(2) If provided in the proceedings authorizing the issuance of the bonds and agreed to by resolution of the board of supervisors authorizing the board of commissioners of the district to make a pledge, then when there are insufficient revenues received from special assessments authorized under Section 15 of this act and the avails of the ad valorem tax levy authorized under Section 14 of this act, or from both together, according to the provisions made in the proceedings authorizing the issuance of the bonds, to meet the interest or principal payments, or both, when due on any bonds issued under this act (excluding for this purpose any amounts in a reserve fund for those bonds), then, upon certification of that fact by the board of commissioners of the district to the board of supervisors, the board of supervisors shall levy an ad valorem tax on all taxable property within the geographical limits of the district. The avails of the tax, together with any other monies available for that purpose, shall be sufficient to provide for the payment of the principal of and interest on the bonds as the principal and interest falls due. If provided in the proceedings for the issuance of the bonds, the avails of the tax may also be used to replenish any reserve fund established for the bonds.

SECTION 13. In addition to the purposes authorized by Section 12 of this act, any district created under this act may issue negotiable special improvement bonds of the district in the manner provided in Section 12, for any of the following purposes:

(a) To refund the outstanding bonds of the district upon a finding by the board of commissioners that the refunding is in the public interest;

(b) To improve or extend the structures or facilities of the district or to conduct projects of the district; and

(c) To enter into cooperative agreements with the state or federal government, or both, to obtain financial assistance in the form of loans or grants as may be available from the state or federal government, or both (reference to the state or federal government as used in this section shall specifically include any agency thereof).

The district may make any covenants and do any acts and things as may be necessary, convenient and desirable to secure the bonds or make the bonds more marketable, notwithstanding that the covenants, acts or things may not be enumerated in this act or expressly authorized in this act. The board of commissioners, in issuing the negotiable special improvement bonds, shall have the power to do all things required or necessary in the issuance of those bonds and for their execution which are not inconsistent with the Mississippi Constitution of 1890.

SECTION 14. (1) The board of supervisors of the county in which a district exists, may, according to the terms of the resolution and upon receipt of a resolution of the board of commissioners adopted by a three-fifths (3/5) majority of that board requesting the funds, levy a special tax, not to exceed four (4) mills annually, on all taxable real property in the district. The avails of the tax shall be paid over to the board of commissioners of the district to be used either for the support of the district, planning, design, construction, operation, maintenance or improvement of projects of the district or for the retirement of any bonds issued by the district, or for any combination of those uses.

(2) The proceeds derived from two (2) mills of the levy authorized in this section shall be included in the ten percent (10%) increase limitation under Section 27-39-321, and the proceeds derived from any additional millage levied under this subsection in excess of two (2) mills shall be excluded from that limitation for the first year of such additional levy and shall be included within that limitation in any year thereafter.

(3) Following the initial tax levy, the special tax levy under this subsection may be increased only when the board of supervisors, after receipt of the resolution of the board of commissioners requesting an increase and stating the proposed amount of the increase and the purposes for which the additional revenues shall be used, has determined the need for additional revenues, adopts a resolution declaring its intention to increase the levy and has held an election on the question of increasing the tax levy prescribed in this section. The notice calling for an election shall state the purposes for which the additional revenues shall be used and the amount of the tax levy to be imposed for those purposes. The tax levy may be increased only if the proposed increase is approved by a three-fifths (3/5) majority of those voting within the district. Only those qualified electors of the county which reside in the district may vote in the election. Subject to specific provisions of this paragraph to the contrary, the publication of notice and manner of holding the election within the district shall be as prescribed by law for the holding of elections for the issuance of bonds by the board of supervisors. The election shall be held only within the district.

SECTION 15. (1) In addition to the sources of funding provided for in Sections 1 through 14 of this act, the board of commissioners, if approved by the board of supervisors in the resolution creating the district, may levy and collect special assessments on certain property located in the district to provide funds for the purposes for which bonds may be issued under Sections 12 and 13 of this act. The board of commissioners may pledge the receipts from the special assessments to secure the payment of the principal of, premium, if any, and interest on any bonds authorized to be issued under this act. Special assessments may be levied on the property within the boundaries of the district at the time the special assessments are levied. Any special assessments authorized under this section shall be levied and collected in the manner provided in Sections 21-41-1 through 21-41-53, Mississippi Code of 1972. The board may secure bonds of the district solely from the receipts of special assessments, or may pledge such receipts in addition to the pledge of receipts from any tax levy authorized in this act, or from any combination of monies from the special assessments and tax levies. Bonds issued under Section 12 or Section 13 of this act shall be payable as to principal, premium, if any, and interest solely from the sources authorized in this act.

SECTION 16. Any bonds secured by a pledge of the special assessments shall mature at any time or times, not exceeding twenty-five (25) years from the date of the bonds, and may be in fully registered form or in bearer form, as determined by the board of commissioners.

SECTION 17. All special assessments levied under this act shall be payable in equal annual installments over a period not to exceed excess of twenty-five (25) years, as determined by the board of commissioners, with interest from the date of the confirmation of the assessment at a rate, to be fixed by the board of commissioners, which will produce sufficient funds for the payment of all or a specified portion of the principal of and interest on the bonds as they mature and accrue and for fees and expenses for a paying agent or trustee, or both for the bonds. The amount to be paid through the special assessments may be limited by the board of commissioners to the amounts needed for the purposes specified in this section. Any property owner who shall not have taken an appeal from the assessment, upon failure to pay the assessment in full within thirty (30) days from the date of confirmation, shall be deemed to have elected to pay the assessment in installments as provided in this section, and shall be deemed to have admitted the legality of the assessment, and the right to contest the validity of the assessment shall be waived. The installments of the assessment shall be due and payable at the same time that the annual real property tax becomes due and payable, commencing with the first county tax levy which is payable after the expiration of thirty (30) days from the date of confirmation of the assessment.

SECTION 18. The resolution declaring the intent of the board of commissioners to proceed with the special improvement projects of the district may direct that all of the expenses of the property, structures or facilities of the district, or the part of the expenses that the board of commissioners shall charge upon the property in the district shall be assessed according to the frontage rule or area rule, as outlined in this section. Bonds may be issued for one or more projects, and the area and method of assessment for each project shall be specified in the resolution declaring the intent of the board of commissioners of the district to proceed with that project. The resolution declaring the intent of the board of commissioners to proceed with any special improvement shall:

(a) Define the properties in the area to be benefited by each improvement, with each improvement being designated as a project;

(b) Fix the amount or percentage of the charge to be levied upon the property benefited;

(c) Designate the minimum and maximum number of years between the date of issuance of the bonds and the maturity of those bonds;

(d) Delineate the method of determining the amount of special assessments to be levied on each lot or parcel of land in the benefited area; and

(e) Designate the minimum and maximum number of equal approximately equal annual installments that the board of commissioners may later allow for the payment of assessments with interest on those assessments.

If the board of commissioners determines that the front foot rule is the most equitable method of distributing the cost among the properties, then the resolution shall direct that the cost to be assessed against each lot or parcel of land shall be determined by dividing the entire cost to be assessed by the total number of front feet of real property abutting upon the shoreline on which the project is located and which will be subject to the special assessment, and multiplying the quotient by the total number of front feet in any particular lot or parcel of land fronting in the beach on which the project is located. The result of this formula shall be assessed against each lot or parcel of land for the owner's part of the cost of the entire improvement to be paid through special assessments.

If the board of commissioners determines that the area rule is the most equitable method of distributing the cost among the properties, then the resolution shall direct that the cost to be assessed against each lot or parcel of land shall be determined by dividing the entire cost to be assessed by the total number of acres or square feet in the area being benefited and that is subject to the special assessment, and multiplying the quotient by the total number of acres or square feet in any particular lot or parcel of land. The result of this formula shall be assessed against each lot or parcel of land for the owner's part of the cost of the entire improvement to be paid through special assessments.

SECTION 19. If the owners of a majority of the front footage of the property to be assessed under the front foot rule, or if the owners of a majority of the area of the property to be assessed under the area rule, as described in Section 18 of this act, file a written protest objecting to the assessments authorized under this act, then the board of commissioners shall not proceed with the special assessment.

SECTION 20. The board of commissioners of any district created under this act shall have the authority to enter into cooperative agreements with the state or federal government, or both, to obtain financial assistance in the form of loans or grants as may be available from the state or federal government, or both. The board of commissioners may execute and deliver at private sale notes or bonds as evidence of the indebtedness in the form and subject to the terms and conditions as may be imposed by the state or federal government, or both. The board of commissioners may pledge the income and revenues of the district, or the income and revenues from any part of the area embraced in the district, in payment thereof. The district to do all things necessary to secure the financial aid or cooperation of the state or federal government, or both, in the planning, design, construction, operation, maintenance or improvement of projects of the district.

SECTION 21. This act, without reference to any statute, is full and complete authority for the creation of the district and for the issuance of bonds. No proceedings shall be required for the creation of the district or for the issuance of bonds other than those provided for and required in this act. All necessary powers to be exercised by the board of supervisors and by the board of commissioners of the district in order to carry out this act are conferred under this section.

SECTION 22. Within ninety (90) days after the close of each fiscal year, the board of commissioners shall publish in a newspaper of general circulation in the county in which the district is located a sworn statement showing the financial condition of the district, including the revenues and expenses of the district for the fiscal year just ended. The statement shall also be furnished to the board of supervisors of the county in which the district lies.

SECTION 23. Any bonds issued under the provisions of this act may be submitted for validation under the provisions of Chapter 13, Title 31, Mississippi Code of 1972.

SECTION 24. This act shall be liberally construed for the purposes herein set out, the powers hereby granted being additional, cumulative and supplemental to any power granted to a board of supervisors by any general or local and private act of the Legislature.

SECTION 25. If any provisions of this act shall be held to be invalid by any court of competent jurisdiction, the remainder of this act shall not be affected thereby.

SECTION 26. This act shall take effect and be in force from and after its passage.