New Albany receives State AG’s opinion on rezoning issue

By David Johnson

The State of Mississippi Attorney General has upheld an earlier verbal opinion given to the city of New Albany regarding a requested suspension of a building permit issued to Lehman-Roberts Asphalt Company in June.

In accordance with statements made by New Albany City Attorney Bobby Carter during an Aug. 5 board of aldermen meeting, the Attorney General’s office has issued an official written opinion that the city of New Albany would not have had legal grounds to suspend the permit issued based on evidence given by Carter’s office.

The Attorney General’s office based its decision on a written inquiry issued by Carter regarding the topic. In that inquiry, Carter stated that 1305 Munsford Drive, the piece of land where Lehman-Roberts seeks to build its newest asphalt plant, was rezoned from Agricultural to Industrial property due in part of an error in which it was included with other land that was intended to be rezoned in 1996. Carter stated that the City of New Albany later had two annexations and, as a result, the city’s official zoning map was redrafted. In that new draft, the land was thus drawn as Industrial rather than Agricultural.

Carter then states that the current owner of the property, Booker Farr, recently sought to sell the land to Lehman-Roberts, who then applied for a building permit with the city in June. The permit was granted, Carter states, in accordance with the zoning map. A group of New Albany citizens, plaintiffs in a current court case regarding the matter against the city, requested that the building permit be suspended until a court ruling regarding a petition to rezone the property.

During the Aug. 5 meeting, Carter said that he had received an opinion from the Attorney General’s office, stating that the city would have no legal standing for suspending the permit. However, the opinion he had received at that time was only verbal and therefore not official.

In the official opinion, which is based upon the case Carter presented, the Attorney General’s office states that the city indeed had no standing to suspend the permit, based on a 1981 Fifth Circuit case, Wheeler v. City of Pleasant Grove, in which it was found that the city’s efforts to forbid construction of new apartments by a developer was in violation because he had a valid building permit.

The Attorney General goes on to state that, at the present time, the building permit is valid until the court decides whether or not to uphold a petition to rezone the property to agricultural due to an alleged mistake.

Circuit Court Judge Henry Lackey had suspended the building permit in mid-August in order for the city to either confirm or deny the plaintiffs’ request. The board of aldermen went on to deny the request in a September board meeting.

A date has not yet been set for the plaintiffs’ appeal to Circuit Court of the aldermen’s ruling.