Cor Dev. V. College Hill Heights Homeowners

• Decision Date: 15 January 2008
• Docket Number: No. 2006-CA-01810-COA.,2006-CA-01810-COA.
• Citation: 973 So.2d 273
• Parties: COR DEVELOPMENTS, LLC, et al., Appellants v. COLLEGE HILL HEIGHTS HOMEOWNERS, LLC, Appellee.
• Court: Mississippi Court of Appeals

973 So.2d 273

COR DEVELOPMENTS, LLC, et al., Appellants v. COLLEGE HILL HEIGHTS HOMEOWNERS, LLC, Appellee.

No. 2006-CA-01810-COA.

Court of Appeals of Mississippi.

January 15, 2008.

Lawrence Lee Little, Tara Beth Scruggs, attorneys for appellants.

Omar D. Craig, Oxford; attorney for appellee.

Before KING, C.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. College Hill Heights Homeowners, LLC (the homeowners) filed a complaint in the Chancery Court of Lafayette County requesting an injunction to prevent COR Developments, LLC (COR) from building a fifty-unit condominium development on seven lots in the subdivision. After a hearing, the chancery court granted the injunction, finding (1) that the planned development contravened restrictive covenants applicable to the lots and (2) that COR had not followed the statutory procedure required to alter the recorded subdivision plat. COR appeals, contending that the chancellor erred (1) by finding that the proposed development constituted a resubdivision of the lots in violation of the restrictive covenants; (2) by ignoring the plain language of the restrictive covenants; and (3) by finding that the proposed development altered the plat of College Hill Heights subdivision.

¶ 2. Although this appeal presents several, questions for decision, including whether the condominium development was a "subdivision by subterfuge," the dispositive question is whether COR had to pursue a statutory plat vacation procedure outlined at Mississippi Code Annotated section 17-1-23 (Rev.2003) or section 19-27-31 (Rev. 2003) in order to proceed with the condominium development. We answer this question in the affirmative and affirm the chancellor's grant of an injunction preventing COR from proceeding with the condominium development or altering the subdivision plat until it secures leave to do so from the appropriate authority pursuant to section: 17-1-23(4) or section 19-27-31. We reverse the chancellor's determination that the condominium development was prohibited by the restrictive covenants running with the land.

FACTS

¶ 3. College Hill Heights is a residential subdivision located in Lafayette County northwest of the city limits of Oxford, Mississippi. The subdivision abuts the west side of College Hill Road. The original plat of the subdivision was recorded by the Lafayette County Chancery Court Clerk on July 17, 1961, by. owner J.L. Adams. This plat showed forty-three lots with access provided by two streets, College Hill Drive and Adams Lane. College Hill Drive formed a loop with each end connecting to College Hill Road. To the south, Lots 3-14 were arranged along Adams Lane, which provided access from College Hill Road and ended in a cul-de-sac. College Hill Drive and Adams Lane did not intersect. In an owner's certificate filed with the plat, Adams expressed his intent to dedicate the platted streets. A revised plat showing utility easements and lot dimensions was recorded on May 26, 1962.

¶ 4. On May 9, 2005, COR purchased a tract consisting. of Lots 6, 7, 8, 9, 10, 19, and 20 from John M. Rogers and Martha L. Rogers. COR hirod Precision Engineering Corporation to develop a plan for a fifty-unit condominium development on the subject lots to be named "Hickory Cove." The development was to consist of one- and two-story condominiums from 1,000 square feet to 1,800 square feet. On May 23, 2005, Kenny McCullough, a member of COR, and Ryland Sneed, a registered licensed surveyor with Precision Engineering, appeared before the Lafayette County Planning Commission and obtained preliminary approval for Hickory Cove. No representative of COR ever appeared before the Board of Supervisors concerning approval. Nor did COR notice the other landowners in the subdivision or publish any notice of the condominium development. COR cleared the land and began construction on Unit 27, attracting the attention of neighboring property owners.

¶ 5. On September 9, 2005, the homeowners filed a complaint to enjoin COR from proceeding with the condominium development. The homeowners alleged that Hickory Cove, as planned, violated the restrictive covenants running with the land. The homeowners also complained that COR had not followed statutory procedures for altering or vacating the recorded subdivision plat. The homeowners claimed that the development would (1) increase traffic flow in the subdivision, (2) increase demands on the water and sewerage system serving the subdivision, (3) increase the density of structures and occupants to an extent materially affecting the health, safety, and welfare of the entire subdivision, and (4) cause diminution of value of the other developed and undeveloped lots within the subdivision.

¶ 6. The restrictive covenants were contained in a warranty deed conveying Lots 1-20 from Adams Real Estate, Inc., to Gilbert and Joyce M. Lomax on April 24, 1970. The deed stated:

As part of the consideration for this conveyance, Lots 3 through 20, inclusively, are not to be re-subdivided, are to be used for single or multi-family residential purposes only; and no residential structure shall be constructed on said lots which does not have a fair market value including the value of the land of at least $15,000.00 for singlefamily residences, or $22,000.00 for multi-family residences based upon the latest published commodity price index of the United States Government. These covenants and restrictions are to be construed as covenants running with the land.

The warranty deed from the Rogerses to COR stated that "[t]he warranty herein contained is subject to, and there is excepted therefrom, those certain restrictive covenants set out and contained in [the Lomax deed]." The homeowners sought to show that the planned fifty-unit condominium development violated they prohibition against re-subdividing the lots and/or that the condominiums violated the restriction that the lots be used for "single or multi-family residential purposes only." COR put on testimony that a condominium development is considered to be a multi-family use and that, due to the unique way in which condominiums are owned, a condominium development does not require subdividing the property on which the development lies.

¶ 7. The homeowners also sought to prove that the Hickory Cove project required statutory alteration of the recorded College Hill Heights subdivision plat because the project would obliterate the platted interior lot lines, utility easements, and a portion of the right-of-way of Adams Lane. Two sections of the Mississippi Code of 1972 Annotated prescribe procedures through which a landowner may secure alteration or vacation of a map or plat. Mississippi Code Annotated section 19-27-31 (Rev.2003) permits the landowner to petition the chancery court for relief, naming the persons adversely affected or directly interested in the proposed alteration or vacation of the map or plat. Alternatively, under section 17-1-23(4), the landowner may secure relief by petitioning the Board of Supervisors provided the petition includes the written agreement of all adversely affected or directly interested parties. Under these statutes, a landowner wishing to alter or vacate a map or plat may seek relief from the Board of Supervisors only if the landavVner has obtained approval from all directly interested or adversely affected persons; otherwise, the landowner's sole avenue for relief is by petitioning the chancery court under section 19-27-31.

¶ 8. Throughout the proceedings, COR maintained that Hickory Cove would not require alteration or vacation of the recorded plat of the College Hill Heights subdivision and for that reason the chancery court procedure, with its requirement of notice to directly interested or adversely affected persons, was unnecessary for COR to proceed with the development. It was established that the recorded plat of College Hill Heights subdivision showed utility easements on each of the seven lots owned by. COR. The plat showed that Lots 6, 7, 8, 9, and 10 abutted Adams Lane, with Lots 7, 8, 9, and 10 situated on the cul-de-sac. Lots 19 and 20 were behind Lots 9 and 10 and fronted College Hill Drive.

¶ 9. According to the map of the Hickory Cove project that was admitted into evidence, the development's fifty freestanding condominium units were to be situated around a circular road with access from College. Hill Drive through Lots 19 and 20. Ryland Sneed, a registered land surveyor, testified that according to the plan for Hickory Cove, there would be units on all seven lots, with some situated over the interior lot lines and utility easements depicted on the recorded subdivision plat. Also, the Hickory Cove development would utilize a portion of the platted Adams Lane, including the entire cul-de-sac, for condominium units and common areas.

¶ 10. Sneed stated that, although Adams Lane appeared on the College Hill Heights subdivision plat, the lane had never been constructed or opened and did not "exist on the ground." He further testified that an owner of Lots 3, 4, 11, 12, 13, and 14, which together abutted College Hill Read, had built a house partially obstructing the Adams Lane right of way.¹ In Sneed's opinion, Adams Lane was unusable as platted due to this obstruction. Sneed stated that the utility easements shown on the plat were undeveloped and would be "obliterated" or moved to different locations as needed' to provide utility service to the condominiums. Sneed opined that because Hickory Cove would not exceed the exterior boundaries of the subdivision, the recorded subdivision plat did not require alteration to reflect the changes to be wrought by Hickory Cove. Corbert Jones, a county planner for Lafayette County, testified that, in his opinion, Hickory Cove would be a revision or alteration of the recorded plat of College Hill Heights subdivision.

¶ 11. The chancery court found that the planned condominium development was, in practical effect, a "subdi...