The Carl Ronnie Daricek Living Trust v. Hancock County, 2009-IA-01513-SCT

Decision Date13 May 2010
Docket Number2009-IA-01515-SCT.,2009-IA-01514-SCT,No. 2009-IA-01513-SCT,2009-IA-01513-SCT
Citation34 So.3d 587
PartiesThe CARL RONNIE DARICEK LIVING TRUSTv.HANCOCK COUNTY, Mississippi, acting by and through its BOARD OF SUPERVISORS and The Hancock County Road Protection Commission.Ernest Beckemeyer, IIIv.Hancock County, Mississippi, acting by and through its Board of Supervisors and The Hancock County Road Protection Commission.Lisa K. Fitch, Sandra K. Goodwin and Ann K. Englehornv.Hancock County, Mississippi, acting by and through its Board of Supervisors and The Hancock County Road Protection Commission.
CourtMississippi Supreme Court

[34 So.3d 587 590]

Virgil G. Gillespie, Gulfport, attorneys for appellant.

Karl Crawford Hightower, attorneys for appellee.


RANDOLPH, Justice, for the Court:

¶ 1. The three consolidated cases are nearly identical.1 Landowners assert in this interlocutory appeal that the statute used by Hancock County to condemn their property for a temporary construction easement is unconstitutional, or has been repealed and/or superseded by a subsequent statute. The landowners seek a remand to the Hancock County Board of Supervisors to begin proceedings “anew.” We affirm the decision of the circuit court and remand the matter to that court for a jury trial, if requested by the landowners.


¶ 2. Hurricane Katrina severely damaged the seawall protecting Beach Boulevard in downtown Bay Saint Louis. Only battered, intermittent sections remain. The U.S. Corps of Engineers (“Corps”) offered to rebuild the seawall for Hancock County using federal funds, at an estimated cost of $33,000,000. The planned seawall will be slightly seaward from the former one and will be located on land already owned by the State (public-trust tidelands). See Parks v. Simpson, 242 Miss. 894, 902, 137 So.2d 136, 138-39 (1962). The seawall project requires easements from landowners. Some permanent easements are required for access, drainage, maintenance, and other

[34 So.3d 587 591]

purposes. Also required are temporary construction easements, which will revert to the owners. The easements at issue are for temporary construction, not to exceed thirty-six months, and involve small parcels (Daricek, 0.14 acre; Beckemeyer, 0.11 acre; Fitch, .004 acre).

¶ 3. From the beginning of this project, the Hancock County Board of Supervisors (“board”) followed the statutory procedures of the Seawall Act. See Miss.Code Ann. §§ 65-33-1 to 65-33-71 (Rev.2005). In accordance with that statute, the board certified to the governor that a seawall was necessary to protect Beach Boulevard. The governor then appointed five members to the Hancock County Road Protection Commission (“commission”). See Miss.Code Ann. § 65-33-27 (Rev.2005).

¶ 4. The first attempt to obtain the necessary temporary easements from the landowners was via a letter from the Corps in August 2008, followed by a second letter in February 2009. Enclosed with the letters were easement agreements. All of the affected owners, except the three appellants, agreed to the easements. The Daricek property and the Beckemeyer property are on either side of railroad tracks that run east and west through Bay Saint Louis. The Fitch property is located several lots away from the property of the other two appellants.

¶ 5. Although the owners now argue that the board never negotiated with them, they conceded at a hearing that the Corps had negotiated with them when the original letters were sent. The owners were unwilling to grant the easements without compensation. The Corps countered that lack of compensation was justified because of the expected increase in the value of the condemnees' property after the construction of the new seawall.

¶ 6. The board proceeded to condemn the property under the Seawall Act. See Miss.Code Ann. § 65-33-23 (Rev.2005). The commission published notice of the condemnation in a newspaper in Hancock County. The notice listed the three landowners by name. All three landowners responded with claims for compensation as provided for in the statute. See Miss.Code Ann. § 65-33-31 (Rev.2005). The board responded by sending letters (mailed May 27, 2009) to the landowners, informing them that the board would visit the properties on June 8, 2009, to assess the damages claimed by the owners. On that date, a team of appraisers, including a member of the board, visited the properties, but the owners did not attend.2

¶ 7. Following the site assessment, the board passed at its meeting on June 24, 2009, a seawall resolution, denying the claims of the three owners. The resolution was entered into the minutes of the board's meeting, and a copy of the minutes was certified as a true copy by the Clerk of the Board of Supervisors. All five board members were listed by name as having voted in favor of the resolution, which called for the taking of the property. The basis for the board's decision was detailed in the resolution, as follows:

The benefit conferred upon the property owner by erection of the Seawall exceeds, in terms of value, any damage that may be incurred by [the property owner], and therefore, the property ... will have an enhanced value as a result of the erection of the Seawall. As such, the Board finds that just compensation for this claim is $0.00. The Board further finds that it is entitled to offset damages incurred by the landowner with the value of the enhancement conferred

[34 So.3d 587 592]

upon the landowner by completion of the Project, as the prohibition against using enhancement as an offset is found in Mississippi Code Annotated § 11-27-21 (1972), and the procedure being employed by the Board by this instance is set forth in Mississippi Code Annotated § 65-33-1, et seq., wherein no such prohibition is found.

¶ 8. The landowners appealed to the Circuit Court of Hancock County by submitting a Suggested Bill of Exceptions under the statute applying generally to appeals from the decisions of municipal authorities. See Miss.Code Ann. § 11-51-75 (Rev.2002). The board requested that the county's actions be affirmed. The board submitted that its actions were proper under the Seawall Act and that the landowners' right to an appeal was provided for specifically in the Seawall Act. See Miss.Code Ann. § 65-33-33 (Rev.2005). The landowners responded by arguing that (1) the Seawall Act is unconstitutional; (2) the Seawall Act was repealed or superseded by the Real Property Acquisition Policies Act (“RPAPA”); (3) the manner in which the property was condemned had resulted in an unconstitutional taking; (4) the manner in which the property was condemned was not in compliance with the procedural requirements of the Seawall Act or the RPAPA; and (5) the board had violated the separate Eminent Domain Act's prohibition of using enhancement as an offset to a compensation amount. See Miss.Code Ann. §§ 43-37-1 to 43-37-13 (Rev.2009); Miss.Code Ann. § 11-27-21 (Rev.2004).

¶ 9. In August 2009, the circuit court heard arguments and issued an order affirming the actions of the board. The circuit court held that [t]he issue of damages, however, shall be revisited and, if necessary, subject to a jury trial in order to determine the amount of compensation that [the landowners are] owed.” Regarding the constitutionality of the Seawall Act and the taking, the circuit court found that the landowners' due-process rights had not been violated, as the landowners had notice and an opportunity to be heard, by way of: (1) the newspaper notice, (2) the claim to the board, (3) the actual notice of assessment visit, and (4) the right to accompany the appraisers. Regarding the RPAPA's effect on the Seawall Act, the circuit court agreed that both statutes applied, and that both had been followed by the Board. Under the RPAPA, the circuit court found that the Board had (1) negotiated with the landowners (via the Corps); (2) appraised the land via the site-assessment visit; (3) submitted a written statement (the board's resolution) to the landowners describing the basis on which the compensation had been determined; and (4) initiated a formal condemnation hearing (board meeting) when it became necessary to acquire the temporary easements through eminent domain. Under the Seawall Act, the circuit court found that the board had provided the landowners due and legal notice. The newspaper condemnation notice and the notice of the assessment visit had informed the landowners of their right to make a claim and to accompany the appraisers. The circuit court found that, if the landowners desire a jury trial on the issue of damages, the Seawall Act entitles them to such a trial. See Miss.Code Ann. § 65-33-33 (Rev.2005). Thus, damages, if any, ultimately would be determined by a jury.

¶ 10. The landowners petitioned this Court for an interlocutory appeal, which was granted. This Court found that the appeal should be expedited and invited the Mississippi Attorney General to file an amicus curiae brief.


[34 So.3d 587 593]

¶ 11. The issues 3 are as follows:

I. Whether the Seawall Act is unconstitutional.

II. Whether the Seawall Act has been repealed or superseded by the Real Property Acquisition Policies Act.

III. Whether the county complied with all constitutional and statutory requirements in condemning the property.
IV. Whether it was error to find that the landowners are entitled to a jury trial, or whether the matter should be remanded to the Board of Supervisors to start anew under a separate Eminent Domain statute and/or the Real Property Acquisition Policies Act.

¶ 12. “A ‘very heavy burden’ rests upon this Court before it may find a statute unconstitutional.” State v. Bd. of Levee Comm'rs for Yazoo-Miss. Delta, 932 So.2d 12, 19 (Miss.2006) (quoting Moore v. Bd. of Supervisors of Hinds County, 658 So.2d 883, 887 (Miss.1995)). The Board of Levee Commissioners Court continued as follows:

[I]t behooves us to recall that the challenged act has been passed by legislators and

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