Worley Brown, LLC v. Mississippi Dep't of Archives & History
| Decision Date | 24 April 2012 |
| Docket Number | CIVIL ACTION NO. 3:10cv394 HTW-LRA |
| Parties | WORLEY BROWN, LLCPLAINTIFF v. THE MISSISSIPPI DEPARTMENT OF ARCHIVES AND HISTORY DEFENDANT |
| Court | U.S. District Court — Southern District of Mississippi |
Before this court are three motions. The first is a Motion to Dismiss for Lack of Jurisdiction, for Immunity, and for Other Grounds [docket no. 4] filed by defendant The Mississippi Department of Archives and History. The other two motions, both filed by plaintiff Worley Brown, LLC, are: a motion to remand this action to state court [docket no. 10] and a motion for leave to amend the complaint [docket no. 13]. Having considered the written submissions of the parties and having conducted a hearing on the motions, this court grants defendant's motion to dismiss [docket no. 4] and denies both the plaintiff's motion to remand [docket no. 10] and the plaintiff's motion for leave to amend the complaint [docket no. 13]. The court reasons as follows.
The Mississippi Department of Archives and History ("MDAH") is an agency of the State of Mississippi. See Miss. Code Ann. § 39-5-1.1 The Board of Trustees of theMDAH ("the Board") is empowered "to determine the site of and to designate Mississippi landmarks . . . to consider the requests for, and issue, the permits [with respect to such landmarks]. . . and to protect and preserve the archaeological, historical and architectural resources of the State of Mississippi." Miss. Code Ann. § 39-7-7. Once designated as a Mississippi Landmark, any real property and building may not be "taken, altered, damaged, destroyed, salvaged, restored, renovated or excavated without a permit from the Board," regardless of whether the property is publically or privately owned. Miss. Code Ann. § 39-7-11.2
On December 29, 1995, Jerold D. Krouse conveyed a parcel of land commonly known as the site of the Natchez Pecan Factory Shelling Company to the City by Deed of Gift. Deed [docket no. 10-1]. On August 9, 2005, the City of Natchez, AdamsCounty, Mississippi, entered into an Option/Development Agreement for the acquisition and development of said land with Worley Brown, LLC ("Brown, LLC), a Mississippi limited liability company with its principal place of business in Natchez.3 Id.; Complaint at ¶ 1. All parties agree that at its meeting on January 13, 2006, the Board, pursuant to Mississippi Code § 39-7-11,4 designated said property as a protected Mississippi Landmark. Certificate of Mississippi Landmark Designation [docket no. 4-2]. At the time of the designation, the City of Natchez owned the site.
In accordance with the Option/Development Agreement, on May 30, 2006, Edward A. Worley, acting on behalf of Brown, LLC, purchased the property from the City of Natchez. Deed.5 Brown, LLC purchased the site from the City with the understanding under the Option/Development Agreement that Brown, LLC would demolish the Natchez Pecan Shelling Factory and build condominiums on the property. Complaint at ¶ 13. Brown, LLC knew its intended activities required a permit from the Board and claims it purchased the land believing that the Board issued such permits in February 2006 and March 2006. Id.
At a meeting of the Permit Committee of the Board, on February 9, 2006, Tom Waggener, the Board's Review and Compliance Officer, reported that he had received Notice of Intent Forms dated January 23, 2006, seeking permission to demolish the Natchez Pecan Shelling Factory and construct condominiums at the site. Waggener moved that a permit be issued for the project subject to the conditions that:6
Permit Committee Meeting Minutes, February 9, 2006 [docket no. 14-5]. The Committee unanimously approved the motion.
On March 9, 2006, at a Permit Committee meeting, Waggener presented proposed revisions to the conditions approved at the February 9 meeting. The revised conditions would require:
Permit Committee Meeting Minutes, March 9, 2006 [docket no. 14-5]. The Committee voted unanimously to amend the requirements for permit issuance as Waggener proposed. On June 2, 2006, the Board met and ratified the actions of the Permit Committee.
In February 2007, the Natchez Pecan Shelling Company Building was demolished. The Board had not issued a permit for such. Persuaded that Brown, LLC and the City of Natchez had acted without proper authority, the Attorney General for the State of Mississippi and MDAH asked the Adams County, Mississippi, Chancery Court to issue a temporary restraining order prohibiting Brown, LLC and the City of Natchez from further damaging the site without a permit. Board Opinion, October 19, 2007 [docket no. 4-1]. The Chancery Court issued a temporary restraining order. Id.
On March 2, 2007, however, the Board, out of concern for public health and safety, issued a limited permit for removal of the debris. This permit stated:
This Mississippi Landmark Permit applies only to the removal of the debris of the Natchez Pecan Shelling Company Building. This Permit shall not be construed to pertain to any activity other than the debris removal. Other activities include, but are not limited to, site preparation, site excavation, and/or new construction. Such activities shall require a separate application and issuance of a separate Mississippi Landmark Permit prior to commencement.
Mississippi Landmark Permit, March 2, 2007 [docket no. 4-3]. Brown, LLC signed andacknowledged the permit. Clearly, by this March 2007 permit, Brown, LLC had to submit an application and obtain Board approval in order to commence any construction at the site. Complaint at ¶ 27.
On March 6, 2007, a few days later, Brown, LLC filed with MDAH an application for a construction permit. Notice of Intent for Construction [docket no. 4-4]. The specific proposal for a condominium complex submitted to MDAH for approval can be generally described as follows:
The proposed "Riverview Condominiums" would be situated between Broadway Street and the bluff line just south of Madison Street in Natchez, Mississippi. The development would include five condominiums, some of which would be five-stories high including a parking structure located below the first floor. Plan dimensions for the condominiums would range from about 70 ft by 50 ft to about 150 ft by 50 ft. A below-ground swimming pool would also be located on the property. The condominium buildings would be placed as close as 55 ft from the existing edge of the bluff. The soil on the property consists primarily of fill materials, loess, and the Natchez formation.
Board Opinion, October 19, 2007 [docket no. 4-1]. On April 12, 2007, the Permit Committee voted to recommend that certain conditions be met prior to issuance of a permit. Id.
The Board convened a special meeting in September 2007, at which it conducted a formal hearing on Brown, LLC's permit application. At the hearing, the Board heard from the spokesperson for Brown, LLC, as well as from Natchez citizens who opposed the permit. The Board also considered expert testimony from the following: Eddie Templeton, a geological expert hired by Brown, LLC; Dr. David Dockery, Chief of the Surface Geology Division of the Mississippi Office of Geology; Dr. James May, aregistered geologist who formerly had worked with the Corps of Engineers and now teaches at Mississippi State University;7 and two engineering firms - Gallet & Associates and United Consulting - hired by the citizen opponents.
At the conclusion of the meeting, the Board voted to deny Brown, LLC's March 2007 permit application, evidently voting in reaction to the concerns raised by Dr. Dockery, Gallet & Associates, and United Consulting. In light of all of the evidence submitted, the Board concluded that "the proposed construction [was] likely to negatively affect the geological stability and integrity of the Natchez Pecan Shelling Factory site." The Board determined that the potential risk of damage or destruction to "an irreplaceable Mississippi Landmark" was too great. MDAH Opinion, October 19, 2007 at pp.6-7 [docket no. 4-1].
On November 19, 2007, Brown appealed MDAH's decision to the Circuit Court of Hinds County, Mississippi, under a petition for Writ of Certiorari. Petition for Writ of Certiorari, Worley Brown, LLC v. MDAH, No. 251-07-1164CIV (Hinds County Cir. Ct.) [docket no. 4-5]. Certiorari was granted by the Circuit Court on April 9, 2008 [docket no. 4-7]. Brown, LLC requested dismissal of the appeal. MDAH voiced no objection and, consequently, on March 17, 2009, the Circuit Court entered an agreed order of dismissal in the matter ...
To continue reading
Request your trial