933 So.2d 296 (Miss. 2006), 2004-CC-02302, A & F Properties, LLC v. Madison County Bd. of Sup'rs

Docket Nº:2004-CC-02302-SCT.
Citation:933 So.2d 296
Party Name:A & F PROPERTIES, LLC v. MADISON COUNTY BOARD OF SUPERVISORS, Lake Caroline, Inc. and Lake Caroline Owners Association.
Case Date:June 29, 2006
Court:Supreme Court of Mississippi
 
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Page 296

933 So.2d 296 (Miss. 2006)

A & F PROPERTIES, LLC

v.

MADISON COUNTY BOARD OF SUPERVISORS, Lake Caroline, Inc. and Lake Caroline Owners Association.

No. 2004-CC-02302-SCT.

Supreme Court of Mississippi

June 29, 2006

Page 297

G. Todd Burwell, William Larry Latham, Ridgeland, attorneys for appellant.

Robert Richard Cirilli, Jr., Edmund L. Brunini, Jr., Jackson, Thomas A. Cook, Ridgeland, Lisa Michele McCain, Steven H. Smith, Jackson, attorneys for appellees.

Before WALLER, P.J., GRAVES and RANDOLPH, JJ.

RANDOLPH, Justice.

¶ 1. On July 14, 1989, following public notice and a public hearing, the Madison County Board of Supervisors ("Board") adopted the petition of Lake Caroline, Inc. ("LCI") to have 3,047 acres of property rezoned from A-1 Agricultural Classification to P-1 Planned Unit Development District Classification. On September 27, 1995, LCI and A&F Properties, LLC ("AFP") entered into a Contract wherein LCI agreed to sell 154 acres within the Lake Caroline Planned Unit Development ("PUD") to AFP for ten ($10) dollars.1 As additional consideration, AFP agreed to construct "an eighteen (18) hole semi-private golf course" on the subject property. Regarding the golf course, the Contract provided that the property must be used

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and maintained as a golf course for ten (10) years from December 31, 1996. More over, LCI contractually agreed "not to compete with [AFP]" during that period in any golf course operation within the Lake Caroline development "so long as [AFP] operates a golf course." Finally, the Contract also provided that "[i]f [AFP] should desire to sell the Golf Course during the first seven (7) years, [LCI] ... shall be given a right of first refusal to purchase the golf course ... ." (Emphasis added). On November 3, 1995, LCI conveyed the property to AFP by warranty deed. In addition to reiterating portions of the Contract regarding restrictions on the use and transfer of the property as a golf course, the Warranty Deed provided that, "[t]he warranty of this conveyance is made subject to ... (2) All applicable zoning ordinances of the governmental authority having jurisdiction over the herein conveyed property." In 1996, AFP developed the 154 acres as a golf course within the PUD.

¶ 2. At some point after June 26, 1989, the 1989 Master Plan for the Lake Caroline PUD could not be found in the Madison County records.2 In 1998, the Board adopted and duly recorded a different Master Plan ("1998 Master Plan") and declared that all future actions affecting development within the PUD must be in conformity with it. Like the 1989 Master Plan, the 1998 Master Plan provided that "the developer reserves the right, in its sole discretion, to alter or amend the uses and locations illustrated on this plan." Unlike the 1989 Master Plan, the 1998 Master Plan illustrated a golf course a s an amenity within the PUD. The 1998 Master Plan was prepared, filed, and adopted without the knowledge or involvement of AFP, and again unlike 1989, there was neither public notice, nor a public hearing regarding its adoption by the Board. On February 22, 2001, the 1998 Master Plan was allegedly3 amended, adding 217 small residential lots ("2001 Master Plan"), without public notice or a public hearing. On January 8, 2003, the Master Plan was again allegedly4 amended, providing for the addition of six (6) commercial lots ("2003 Master Plan"), once again without public notice or a public hearing.

¶ 3. On September 1, 2003, AFP advised the Board of its intention to convert the golf course into a residential subdivision. AFP asserted that the golf course was not profitable and was not being used by residents of the Lake Caroline PUD.5 On September 9, 2003, Madison County Zoning Administrator Brad Sellers sent a letter to AFP stating that the golf course is zoned as a PUD and "[a]ny changes planned therein must be approved by the [Board] through an amendment to the Master Development Plan." Up to this point, AFP alleges that it was unaware of any Master Plan for the PUD other than the 1989 Master Plan. On November 7, 2003, AFP filed a request asking the Board to hear its proposal to amend the Lake Caroline Master Plan to allow AFP to change the use of its property from a golf course to a residential

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subdivision. Unlike with the 1998 substitution and the 2001 and January 2003 alleged amendments, the Board refused to consider AFP's request without public notice and a public hearing.6 On December 12, 2003, a public hearing was held by the Board regarding AFP's request. After lengthy argument from AFP, LCI, and LCOA, a transcript of the hearing reveals that the Board unanimously voted to table AFP's request and not reconsider the matter before November 2006 ; and its decision was duly recorded in the Board's minutes. This action of the Board was not appealed.

¶ 4. The composition of the Board changed in January 2004 as the result of elections the prior year...

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