City of Greenwood v. Shadow Lake Ass'n

2015 Ark. 143, 459 S.W.3d 291, 2015 Ark. LEXIS 261
CourtSupreme Court of Arkansas
DecidedApril 9, 2015
DocketNo. CV-14-894
StatusPublished
Cited by3 cases

This text of 2015 Ark. 143 (City of Greenwood v. Shadow Lake Ass'n) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Greenwood v. Shadow Lake Ass'n, 2015 Ark. 143, 459 S.W.3d 291, 2015 Ark. LEXIS 261 (Ark. 2015).

Opinion

PAUL E. DANIELSON, Associate Justice

| Appellant City of Greenwood (“City”) appeals from the interlocutory order of the Sebastian County Circuit Court in favor of separate appellees Shadow Lake Association, Inc., a/k/a Shadow Lake Property Owners Association, an Arkansas nonprofit corporation (“SLPOA”) and Shirley Ann Walters and Jennifer Puckett, Trustees of the Bill and Shirley Walters Family Trust of 2007 (collectively, “the Trustees”). The SLPOA and the Trustees had sued the City, claiming that two of the City’s ordinances, which were to submit to the City’s voters questions relating to the annexation of property, were derived in violation of the open-meetings provision of the Arkansas Freedom of Information Act (“FOIA”). In its order, the circuit court granted in-junctive relief by ordering that the ordinances not be included on |gthe November 4, 2014 ballot. See Ark. R.App. P.-Civ. 2(a)(6) (2014) (permitting the appeal of an interlocutory order by which an injunction is granted). On appeal, the City asserts that the circuit court erred in finding that the City violated the open-meetings provision of the FOIA, Arkansas Code Annotated § 25-19-106 (Repl. 2014). It alternatively claims that, to the extent this court might find the matter moot, the circuit court’s orders should still be reversed or vacated. We dismiss the City’s appeal as moot.

The relevant facts are these. On September 30, 2014, the SLPOA filed a complaint against the City regarding an annexation ordinance that included the subdivision of Shadow Lakes Estates, specifically, Ordinance No. 14-13, that was adopted by the City and to be submitted to its voters at the November 4 election. The complaint alleged several irregularities relating to the substance of the ordinance and its adoption by the City’s council. Specifically, the SLPOA asserted that (1) in adopting Ordinance No. 14-13, the City failed to strictly comply with Arkansas Code Annotated §§ 14-40-302 to -303 (Repl. 2013), by failing to properly read the ordinance, failing to give notice of the procedures to be followed at the special meeting during which the ordinance was adopted, and denying the right to comment via a public forum; (2) Ordinance No. 14-13 constituted a taking because the legal description contained in the ordinance did not exclude Shadow Lake resulting in a violation of Arkansas Code Annotated § 14^10-501 (b)(2) (Repl. 2013); (3) the City acted arbitrarily and capriciously in including and excluding certain properties, which resulted in irregular boundary lines, and pressing forward with annexation when it would not be able to economically sustain and maintain proper services to the annexed properties; and (4) |sOrdinance No. 14-13’s adoption violated the open-meetings provision of the FOIA, where the City’s attorney had visited with the City’s council members individually. To remedy these alleged violations, the SLPOA sought an injunction removing the ordinance from, or prohibiting the inclusion of it on, the November 2014 ballot.

A few days later, the Trustees filed a similar action pertaining to the City’s adoption of Ordinance No. 14-12; their petition against the City sought a declaratory judgment that the ordinance was invalid and an injunction enjoining the City from proceeding with the November election. The Trustees averred that, despite having received notification that their property would not be targeted for annexation, their property was included within the legal description of the tract of land included for annexation by Ordinance No. 14-12. They further asserted that the City’s reading of the ordinance was not in compliance with Arkansas Code Annotated § 14-55-202 (Repl. 1998), and that the City adopted the ordinance in violation of the FOIA where the City’s attorney admitted that he had visited with members of the city council prior to the meeting at which the ordinance was adopted. Like the SLPOA, the Trustees also sought an injunction removing the ordinance from the ballot or precluding its inclusion on the November ballot.

The City, answered both complaints and filed a motion to dismiss in each case. That same day, a hearing was held before the circuit court at which both cases were heard jointly. Some debate was had over which claims of the SLPOA and the Trustees the circuit court could hear at that time due to the fact that the ordinances had not yet been put into effect since they had not yet been voted upon. The circuit court further heard the testimony of |4Michael Hamby, who was the city attorney for the City of Greenwood.

At the conclusion of the hearing, the circuit court ruled that Mr. Hamby’s contact with four city council members prior to the council’s adoption of the ordinances at issue was in violation of the FOIA and rendered the ordinances nullities. The circuit court additionally ruled that the ordinances would not be included on the November ballot. A single order memorializing the circuit court’s ruling in both cases was filed the next day. In it, the circuit court found, in relevant part as follows:

14.The meat of this case involves the Open Meetings provision of the Arkansas Freedom of Information Act (A.C.A. § 25-19-106) and whether or not there was a violation of this law. The significant facts are as follows:
• The Minutes of the August 12, 2014, meeting reflect that Mr. Hamby contacted each member of the [Greenwood City Council] as to the modifications of the annexation proceedings and/or ordinances;
• Mr. Hamby testified that he had contacted at least four (4) members of the GCC as to the modifications of the annexation proceedings and/or ordinances;
• The purpose of Mr. Hamby’s contact with the GCC members was to obtain a decision of the council as to the modifications of the annexation proceedings, or as Mr. Hamby testified, he “wanted to know how they wanted to vote”;
• Mr. Hamby further testified that he had specific conversation [sic] with at least one (1) council member as to the possible deletion of Ms. Walters’ property; and
• Mr. Hamby also testified that he conversed with another council member about deleting all or a portion of Tract D, which was done.
15. The Court’s opinion is that the above referenced facts, specifically the contacts and conversations had by Mr. Hamby with individual council members, falls squarely within the parameters of Harris v. City of Fort Smith, Arkansas, 359 Ark. 355, |5197 S.W.3d 461 (2004), which this Court is more than familiar with.
16. The meetings in this matter are subject to oversight under the Freedom of Information Act and the actions taken by Mr. Hamby, the City Attorney, violated the Open Meetings provision of the Arkansas Freedom of Information Act (A.C.A. § 25-19-106), thus rendering the Ordinances derived thereby a nullity.
17. As such, the Ordinances derived in violation of the Open Meetings provision of the Arkansas Freedom of Information Act (A.C.A. § 25-19-106) shall not be included on the November 4, 2014 ballot.

The City now appeals.

As an initial matter, we must determine whether the instant appeal is actually moot given that the November 2014 election has already occurred.

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Bluebook (online)
2015 Ark. 143, 459 S.W.3d 291, 2015 Ark. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-greenwood-v-shadow-lake-assn-ark-2015.