Wash. Cnty., Arkansas v. Presley

2019 Ark. App. 150, 573 S.W.3d 563
CourtCourt of Appeals of Arkansas
DecidedMarch 6, 2019
DocketNo. CV-18-631
StatusPublished
Cited by1 cases

This text of 2019 Ark. App. 150 (Wash. Cnty., Arkansas v. Presley) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wash. Cnty., Arkansas v. Presley, 2019 Ark. App. 150, 573 S.W.3d 563 (Ark. Ct. App. 2019).

Opinion

N. MARK KLAPPENBACH, Judge

Terry Presley applied for a conditional-use permit to operate a wedding and event center on property he owns in Washington County. The permit was denied by the Washington County Quorum Court. Presley appealed to the Washington County Circuit Court, which granted summary judgment to Presley. Washington County, its quorum court, and its county judge now appeal. We affirm.

Presley filed his application for a conditional-use permit in August 2016 and thereafter worked with the Washington County Planning Office to meet the requirements for such a permit as outlined in the Washington County Code. Although the property was zoned for residential and agricultural uses, the Washington County Planning Board and Zoning Board of Adjustments (the board) may authorize other uses upon a finding of the following:

(1) That a written application has been filed with the Planning Office and the appropriate fee has been paid.
(2) That the applicant has provided proof that each property owner as set out in section 11-204 has been notified by return receipt mail.
(3) That adequate utilities, roads, drainage and other public services are available and adequate or will be made available and adequate if the use is granted.
(4) That the proposed use is compatible with the surrounding area.
(5) That the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare.
(6) That the conditional use will not be injurious to the use and enjoyment of other property in the surrounding area for the purposes already permitted, nor substantially diminish and impair property values within the surrounding area.
(7) That the establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding area for uses permitted in the zone.

Washington County, Ark., Code § 11-200(a) (2017). Although some neighbors opposed the permit, the board eventually approved it with conditions in November *5652016. The neighbors then appealed to the quorum court.

At the quorum court meeting, Washington County planner Nathan Crouch spoke about the project and concerns that had been addressed with different county officials. Crouch said that the planning staff recommended approval of the permit with conditions. Following Crouch's presentation, Presley and his sister, who planned to operate the event center with him, answered questions from the quorum court members. Neighbors then spoke in opposition to the permit. Finally, members of the court explained their decisions, cited factors from the code, and voted 11-1 to deny the permit.

Presley appealed to the Washington County Circuit Court as allowed by Arkansas Code Annotated section 14-17-211 (Repl. 2013). He subsequently moved for summary judgment, arguing that the required factors had been proved and there was no genuine issue of material fact. He attached the affidavits of both Crouch and Juliet Richey, the county's director of planning through November 2016. Appellants responded to the motion, arguing that the quorum court, not the planning staff or the board, had the ultimate authority to approve or deny a permit request. The circuit court granted summary judgment to Presley upon finding that the evidence was uncontroverted and that appellants had failed to meet proof with proof. The court found that the planning staff had determined that the application was compliant with the relevant criteria and that their affidavits were unrefuted. The court directed the county to issue the permit to Presley.

The standard of review in reviewing a grant of summary judgment is well established:

Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts.

Benton Cty. v. Overland Dev. Co. , 371 Ark. 559, 564, 268 S.W.3d 885, 888-89 (2007) (quoting Heinemann v. Hallum , 365 Ark. 600, 603-04, 232 S.W.3d 420, 422-23 (2006) (citations omitted) ).

Appellants argue that genuine issues of material fact exist based on the "highly controverted" evidence. They point to the numerous concerns voiced by neighbors who opposed the permit and the code criteria cited by quorum court members who voted to deny the permit. Appellants contend that it was unnecessary to file counteraffidavits in response to the motion for summary judgment because the pleadings filed with the circuit court included the entire record of the proceedings before the planning board and the quorum court, which plainly reveals genuine issues of fact regarding whether the code criteria were met. Appellants also claim that Presley's *566offered proof was inconsistent because an opinion regarding compatibility contained in Crouch's affidavit was absent from Richey's affidavit.

Appellants correctly note that even when a party fails to respond to a motion for summary judgment or fails to present proof showing a genuine issue of material fact, summary judgment may not be warranted. When the proof supporting a motion for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof with proof. Inge v. Walker , 70 Ark. App. 114, 15 S.W.3d 348 (2000). In Inge

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Bluebook (online)
2019 Ark. App. 150, 573 S.W.3d 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wash-cnty-arkansas-v-presley-arkctapp-2019.