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730 So.2d 1128 (Miss. 12/31/1998)

December 31, 1998

COAST MATERIALS COMPANY
v.
HARRISON COUNTY DEVELOPMENT COMMISSION, DELTA INDUSTRIES, INC. AND HARRISON COUNTY BOARD OF SUPERVISORS



Before Pittman, P.j., Smith And Mills, JJ.

The opinion of the court was delivered by: Mills, Justice, For The Court:

DATE OF JUDGMENT: 08/26/97

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

STATEMENT OF THE CASE

¶1. On June 25, 1996, the Harrison County Development Commission ("Commission") resolved to sell a parcel of real property located within the Bayou Bernard Industrial District ("Industrial District") to Delta Industries ("Delta"), a manufacturer of concrete. The Harrison County Board of Supervisors ("Board") entered an order ratifying the Commission's resolution on November 4, 1996. The Commission and Board thereafter conveyed the parcel to Delta by special warranty deed.

¶2. On January 22, 1997 Coast Materials Company, also a manufacturer of concrete, filed suit against the Commission and Delta in the Chancery Court for the First Judicial District of Harrison County. Asserting constitutional and other challenges to the proposed sale, Coast Materials sought injunctive and declaratory relief to enjoin or otherwise nullify the sale of land to Delta. The Chancery Court dismissed the complaint pursuant to Miss. Code Ann. § 11-51-75, which allows the Circuit Court exclusive jurisdiction over appeals concerning a judgment, order, decision, or action by a county Board of Supervisors.

¶3. On March 10, 1997, the Board entered a second order approving the sale to Delta of a different parcel of land, also within the Industrial District, as a substitution for the parcel previously sold to Delta. Based upon this order, on March 20, 1997 Coast Materials filed a bill of exceptions in the Circuit Court of Harrision County pursuant to Miss. Code Ann. § 11-51-75 (1972). The bill alleged the sale of land to Delta violated a "stated policy" of the Commission to restrict sales within the industrial district to non-manufacturers. Three affidavits in support of the bill of exceptions were attached. The affidavits averred that the Board and Commission, pursuant to such policy, had excluded producers of concrete from purchasing land in the industrial district prior to 1988.

¶4. On May 8, 1997 the Commission filed a motion to dismiss the appeal. The Commission and Delta each filed a motion to strike the affidavits in support of the bill of exceptions on May 14, 1997 and May 15, 1997, respectively.

¶5. On August 26, 1997 the trial court rendered an order and final judgment sustaining the motions to strike the affidavits in support of the bill of exceptions and affirming the decision of the Board of Supervisors to sell the parcel of land to Delta. Coast Materials appeals from this decision.

STATEMENT OF THE ISSUES

¶6. Coast Materials assigns the following issues on appeal:

I. WHETHER THE BILL OF EXCEPTIONS FILED BY COAST MATERIALS IS LIMITED TO THE ORDER/RESOLUTION OF THE BOARD OF SUPERVISORS DATED MARCH 10, 1997.

II. WHETHER THE TRIAL COURT ERRED IN STRIKING THE ATTACHED AFFIDAVITS FROM THE BILL OF EXCEPTIONS.

III. WHETHER A CONCRETE PRODUCER IS AN "INDUSTRIAL OPERATION" WITHIN THE MEANING OF MISS. CODE ANN. § 59-9-5 (1972).

IV. WHETHER MISS. CODE ANN. § 59-9-1 IS UNCONSTITUTIONAL BECAUSE IT GIVES AN ADVANTAGE TO ONE BUSINESS OVER ANOTHER.

V. WHETHER THE HARRISON COUNTY DEVELOPMENT COMMISSION AND/OR THE HARRISON COUNTY BOARD OF SUPERVISORS DEPRIVED COAST MATERIALS OF EQUAL PROTECTION AND DUE PROCESS RIGHTS.

VI. WHETHER THE HARRISON COUNTY DEVELOPMENT COMMISSION AND THE HARRISON COUNTY BOARD OF SUPERVISORS ARE ESTOPPED FROM PERMITTING THE PURCHASE OF HARRISON COUNTY DEVELOPMENT ...


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