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Opponents of Diamondhead incorporation attempt Hail Mary

Opponents of Diamondhead incorporation are down to their last strike.

The Mississippi Supreme Court ruled Oct. 27 that efforts to incorporate the retirement village in Hancock County could proceed. Objectors had appealed to the high Court after a ruling in Hancock County Chancery Court went against them.

At issue is objectors’ assertion that they did not receive proper notice of a hearing in January 2009, the evidence presented at which led to the ruling on the chancery level.

John Fletcher, a resident and member of the Diamondhead Property Owners Association who opposes incorporation, said at the first hearing on the matter, in September 2008, the presiding judge recused himself. That led to the hearing being continued until the Supreme Court could appoint another judge to preside. The second hearing with the newly appointed chancellor was held in January 2009, a hearing Fletcher said he was unaware of, and didn’t attend.

It was at that hearing that those in favor of incorporation presented their case.

Attorneys for objectors argued in their appeal to the Supreme Court that incorporation supporters failed to provide public notice of the second hearing. The Court ruled 9-0 in its October decision that because proper notice had been given prior to the original hearing on the matter in September 2008, it applied to the January 2009 hearing. The Court also noted that the incorporation petition had gained the signatures of two-thirds of Diamondhead’s registered voters.

David McCarty, a Jackson attorney who represents Fletcher and a group of objectors, filed a motion for rehearing Nov. 28, essentially asking the Court to reconsider its decision, citing the lack of due process as a “major reason” it should do so.

Specifically, McCarty acknowledges that proper notice was given for the hearing on Sept. 15, 2008. But once that hearing was continued until January 2009, no further notice was given, violating incorporation objectors’ due process.

“That’s our main concern,” McCarty said in an interview last week, of the lack of notice of the January hearing. “We’re not accusing them of a bait and switch, but this is a loophole that could be exploited in some other instance. We’d like the Court to close it. Incorporation does have some benefits, but it inherently means taxes. When people are living paycheck to paycheck, new taxes don’t help.”

Ridgeland attorney Jerry Mills, who represents the petitioners for incorporation, said the objectors’ motion for rehearing is asking the Court to rule on matters the justices have already decided.

“There’s absolutely nothing new brought up,” he said. “There’s substantial case law supporting the Court’s original decision.”

Fletcher said the objectors’ case was likely doomed when nobody representing them showed up at the January 2009 hearing in Hancock County. Because of that, the reasons he believes show no need for incorporation are not reflected in the trial court record, eliminating them from the Supreme Court’s consideration.

The biggest problem, Fletcher said, is that the Diamondhead POA pursued incorporation using members’ dues, something Fletcher maintains is illegal. He argues that since the POA is a nonprofit organization, it is not allowed to engage in political activity. Fletcher added that the POA’s charter would prohibit it from using member money to pursue incorporation.

Mills said the issue of POA funds being used “is not part of this lawsuit. They’ve made those allegations in the past but they’ve never gone anywhere with them. I disagree with that contention, anyway.”

Fletcher said that, beyond the legality of incorporation’s financing mechanism, there’s simply no need for it. Diamondhead’s infrastructure is already maintained with money from POA dues, which are $80 per month for the roughly 5,000 members. The money also maintains the village’s airport, marina, recreations centers and baseball fields. “You name it, we’ve already got it,” Fletcher said.

“It’s run like a business. Every year, we only spend the money we have. And yet we’ve been able to, over the last 30-years plus, make this into the jewel of the Gulf Coast. There’s no need for a city government because we already have everything we need. It’s so much more economical the way we do it now.”

If the Supreme Court denies the objectors’ motion for rehearing, incorporation would take effect no more than 17 days afterward.

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