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MARCH 13, 1985




Appellants Robinson and Gardner requested the Chancery Court of Sunflower County to enjoin the Indianola Municipal Separate School District from constructing a high school gymnasium across the street from their homes on the ground that it would constitute a public nuisance. The chancellor ruled that sovereign immunity barred injunctive relief against the School District and dismissed the action with prejudice. The questions presented for decision are whether sovereign immunity prohibits an action to be brought against a school district over its location and construction of a school building on school property, and, if not, whether the location of the gymnasium in question would constitute a public nuisance; and whether a school district is immune from municipal zoning regulations concerning off-street parking, and if not whether non-compliance would constitute an actionable nuisance.

This case arises from the ashes of the original 700-seat Gentry High School gymnasium built in 1958 and destroyed by fire in 1982. Plans to replace the old gymatorium with a 1500-seat combined gymnasium and auditorium, or gymnatorium, called for moving the location from the old site in the interior of the school grounds to a location on Battle Street directly across from the appellants' property. The School District approved the location and plans, and the superintendent and architect appeared before the City Planning Commission on account of discrepancies between the proposed project and city zoning ordinances. The Planning Commission approved the proposal but, three months later, Battle Street residents appeared before the Commission to present numerous objections to the proposal including devaluation of surrounding property, noise, traffic congestion, vandalism, trash and debris and inadequate parking. The Commission referred the citizens group to the School District; in the meantime, the School District obtained approval for the proposal from the State Educational Finance Commission and entered into a construction contract in December, 1983.

 In April, 1984, the Battle Street citizens learned from a newspaper article that, despite the protests,

 construction would proceed on the gymnatorium on the Battle Street site. Appellants Robinson and Gardner filed a verified bill of complaint on April 16, 1984, for an injunction prohibiting the School District from proceeding with construction of the gymnatorium on the Battle Street site on the ground that it constituted an unlawful nuisance. Appellants also moved from a temporary restraining order or preliminary injunction pending a full hearing on the matters raised in the complaint. One week later, the Chancery Court heard arguments on the preliminary motion and denied all relief on the ground that an adequate remedy at law existed by way of appeal to the School Board's decision to the Circuit Court of Sunflower County. Instead, appellants filed a petition in this Court seeking reversal of the chancellor's denial of a temporary restraining order or preliminary injunction. This Court, per Justice Bowling, granted appellants' relief and ordered an immediate evidentiary hearing on the merits with no discovery.

 The evidence at trial showed that the old Gentry High School gym was located about 350 feet from Battle Street, with a shop and band room located in between, acting as buffers to reduce noise, proximity and eye contact with the gym. The old parking area off Battle Street contained 35 to 40 parking spaces, with an additional 50 parking spaces off Battle Street on the site of the proposed new gymnatorium. Battle Street is a two-lane deadend street opening onto four-lane B.B. King Blvd. *fn1

 The location of the old gym in the interior of the school property made it difficult to control vandalism and the crowds attending games who congregated in front of the gym and in the parking lot on Battle Street several hundred feet away. The appellants testified that when the school hosted athletic events, dances, or civic functions Battle Street suffered from heavy traffic congestion and severe parking problems because of the large crowds in attendance. Double-and-triple-parked cars blocked emergency services into Battle Street and blocked Battle Street residents into their homes. Noise levels were extremely high and loitering, littering, drinking and vandalism were constant problems. On one occasion, an ambulance was unable to pass through the traffic on Battle Street to reach an athlete injured at one of the high school ball games. At the 1984 Gentry High School graduation exercise, Battle Street was again completely blocked with cars parked four-deep. The proposed new gymnatorium would permit Gentry High School's athletic classification to be upgraded so that the school would play bigger schools with bigger crowds. In addition to the ten basketball

 games per year at the new gymnatorium there would be numerous practice games and weekend dances, as well as numerous school-related and civic social events throughout the year.

 When the Indianola School District brought its proposed plan before the City Zoning Administrator, it was pointed out that the Indianola Zoning Ordinance 559.7 (j) required one parking space for each four seats in the main auditorium of a school or one space for each seventeen classroom seats, whichever is greater. Between 375 to 500 parking spaces would be required under the city ordinance for a gymnatorium seating between 1500 and 2000 people. The School District did not request nor was it granted a variance from this zoning ordinance requirement under 301.1, 1 and 2 (d). Although the School District did not comply with the parking requirement in the City Zoning Ordinance, it altered the distance that the gymnatorium would be set back from Battle Street to comply with the applicable city zoning ordinance.

 After all the evidence was heard, the chancellor rendered a decision in favor of the School District on June 22, 1984. The chancellor reasoned that the School District is an agency of the state and exercises a governmental rather than a proprietary function in locating and constructing school buildings including a gymnasium. The chancellor concluded that the Board thus acts in a sovereign capacity, and is exempt from the enforcement of local laws or ordinances. The court ruled that the Indianola Zoning Ordinance, as far as a state agency is concerned, is advisory only because statutes or ordinances in derogation of sovereignty must be strictly construed in favor of the state in order that the state's sovereignty may not be narrowed or destroyed except by legislative acts or provisions of the constitution. The court concluded that, inasmuch as the School District's action in selecting the location and constructing the gymnatorium was a function which the legislature had specifically authorized a school district to perform, governmental immunity bars any cause of action for injunction to abate a nuisance arising from the location or construction of a school building.



 The chancellor ruled that the school district's action in selecting a site for the gymnatorium was within the discretionary authority vested in it by law, so that it enjoys sovereign immunity from suit with respect to the action in question. The legislature has empowered school districts such as the appellee to designate the locations for school buildings and attendance centers in the school district subject to its jurisdiction and to change, alter, or abolish the location of such school buildings and attendance centers as may be required. Mississippi Code Annotated 37-7-315 (1972). The same section provides that where a chance or alteration to the location of a school building shall involve the construction of new school facilities, a municipal separate school district must submit the proposal to the State Educational Finance Commission for approval.

 Our landmark decision in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss. 1982), abolishing sovereign immunity from tort liability for injuries caused by the state and its political subdivisions expressly retained intact the ". . . historical and well-recognized principle of immunity granted to all legislative, judicial and executive bodies and those ...

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