Meramec Specialty Co v. City of Southaven MS ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60238
Summary Calendar
MERAMEC SPECIALTY CO.,
Plaintiff - Appellant,
V.
CITY OF SOUTHAVEN, MISSISSIPPI,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
2:98-CV-171
September 14, 2000
Before EMILIO M. GARZA, STEWART, and PARKER Circuit Judges:
PER CURIAM:*
Meramec Specialty Co. (“Meramec”), a Missouri corporation with
its principal offices in Arkansas, sold fireworks on leased land
in DeSoto County, Mississippi from 1989-1997. When the City of
Southaven, Mississippi (“Southaven”) annexed the land in 1997, the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
land fell under an ordinance prohibiting firework sales within the
city limits except by special permit. Southaven’s Board of
Aldermen passed a resolution “grandfathering in” all the firework
businesses that operated before the annexation. Southaven’s Mayor,
however, vetoed the resolution. As a result, Southaven refused to
issue the special permit. Meramec challenged Southaven’s
enforcement of the mayor’s veto as arbitrary and capricious and in
contravention with its non-conforming use. In response, Southaven
filed a motion for summary judgment. The district court granted
the motion for summary judgment and dismissed all Meramec’s claims
with prejudice.
The district court granted Southaven’s motion for summary
judgment for several reasons. First, the court held that where a
municipality annexes land, enforcement of a pre-existing ordinance
does not violate any property right, especially regarding rights
that were based on a revocable permit. See Davidson v. City of
Clinton, 826 F.2d 1430, 1434 (5th Cir. 1987); Miller v. Board of
Supervisors of Forest County, 230 Miss. 849, 94 So. 2d 604 (1957).
Also, under such enforcement, a property owner cannot resort to the
doctrine of non-conforming use to continue activity proscribed by
annexing authority. See Davidson, 826 F.2d at 1430. Next, the
court held that since the sale of fireworks is related to public
health, safety, and general welfare for which municipal police
powers are granted, there can be no evidence of arbitrariness.
Finally, the court found that the Board of Alderman’s proposed
resolution fell within the statutory definition of ordinance, and
thus was subject to veto by the Mayor.**
Meramec now claims that it is entitled to just compensation
for the taking of its alleged property rights. Since a license to
sell fireworks is simply a revocable permit or alienable privilege,
Meramec does not have a vested property right, and thus does not
have a takings claim. Therefore, Meramec’s just compensation claim
is without merit.
We agree with the district court’s judgment, and find no merit
in Meramec’s just compensation claim. Therefore, we AFFIRM.
AFFIRMED.
**
The statute regarding the mayor’s vetoing powers defines
“ordinance” to include resolutions and orders. See MISS. CODE ANN.
§ 21-3-15 (1972).