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HomeMy WebLinkAboutLetter-Suburban Sewer Improvement District No. 239EILBOTTLAW DoN A. EILBOTT-ATTORNEY, PLC POST OFFICE Box 23870 LITTLE ROCK, ARKANSAS 72221-3870 www.eilbottlaw.com DON A. EILBOTT ARKANSAS BAR 74042 TENNESSEE BAR 036357 August 9, 2023 Mr. Thomas M. Carpenter City Attorney 500 West Markham Street, Ste. 310 Little Rock, Arkansas 72201-1430 501-225-2885 dae a.eilbottlaw.co_m RE: City of Little Rock Planning Commission File: No. S-1844-E Copper Run Phases 6 thru 8 — Preliminary Plat Suburban Sewer Improvement District No. 239 Dear Mr. Carpenter; This firm represents Layman Lane 6, LLC, an Arkansas limited liability company, ("Layman".) In my capacity as legal counsel for Layman, I am authorized to provide this correspondence, which is deemed to be legally binding on my client. Layman has pending before the City of Little Rock Planning Commission ("Commission') at its August 10, 2023, meeting File No. S-1844-E, Copper Run Phases 6 through 8- Preliminary Plat. This correspondence is the product of multiple exchanges among a group consisting of the developer, Layman, members of the Office of City Attorney, including yourself, members of the staff of the Commission and Mr. Skip Davidson, who represents Suburban Sewer Improvement District No. 239 ("SSID 239".) To provide minimal background to properly document past history and current application, on May 24, 2010, SSID 239 transferred by Bill of Sale, the completed sewer facilities owned by SSID 239 to Little Rock Wastewater now Little Rock Water Reclamation Authority. As part of that conveyance, SSID 239 claims it retained the right to levy and collect sewer line connection fees. Mr. Thomas M. Carpenter August 8, 2023 Page Two Subsequent thereto, SSID 239 initiated litigation in the Circuit Court of Pulaski County, Arkansas against Layman Lane, LLC, an entity related to Layman Lane 6, LLC, claiming that Layman Lane, LLC had been unjustly enriched by tying onto the lines formerly owned by SSID 239. That case was adjudicated in the Circuit Court and resulted in a judgment in favor of SSID 239 of $306,250. That judgment and the case are currently on appeal to the Arkansas Court of Appeals as case number cv-23-250. A supersedeas bond was posted as part of the appeal. It is noted the current application for Phases 6-8 does not involve any land in the boundaries of SSID 239 and the line being "tied on to" was never owned or constructed by SSID 239. Layman takes the position it is not indebted to SSID 239 and is not indebted based on any claim of unjust enrichment or otherwise. SSID 239 takes the position it is entitled to compensation and the amount determined, which represented an allocation of $1750 per lot, is the correct determination of damages. Layman anticipates the Court ofAppeals will render its opinion prior to May 2024. Layman believes the opinion will dispose of and answer the issue of entitlement to compensation. Within the past few days, an issue has arisen as to whether any claim is being made by SSID 239 in regard to Phases 6-8. Your office suggested a resolution of any claim that might be made by SSID 239 in regard to Phases 6-8 would be in the best interest of all parties. Given the short time available to reach resolution, and after extensive discussions with your office, Layman has authorized me to provide the following binding statement. Layman is agreeable to the Planning Commission granting approval "subject to resolution of any claim for monetary compensation by Suburban Sewer Improvement District No. 239 prior to the issuance of any Certificate of Occupancy by the City for Phases 6-8." Layman believes the Court of Appeals will provide resolution by ruling prior to the need for the issuance of any Certificate of Occupancy. Layman. In the interim Layman and SSID 239 can resolve to their mutual satisfaction any claim for compensation. That resolution could take the form of a written agreement between the parties, a judicial declaration, a release from SSID 239 or other agreed -upon resolution. Layman states that at this time, the day before the Commission Mr. Thomas M. Carpenter August 8, 2023 Page Three hearing, no formal request has been received from SSID 239 and no specific amount has been communicated either orally or in writing. If there is a request for a Certificate of Occupancy for any completed residence in the approved phases prior to the ruling of the Court of Appeals and prior to resolution by the parties, any application for a Certificate of Occupancy would be accompanied by cashier's check payable to SSID 239 attorneys' trust account, to be held in escrow, in the amount of $1750 for each Certificate of Occupancy, to be held pending the ruling of the Court of Appeals or other resolution. As stated, the contents of this correspondence are deemed to be binding on Layman. It is my understanding that based on this correspondence you will advise your staff and Commission staff that your office has no objection to the Commission proceeding to hear and determine the pending application. Permit me to express my appreciation for your diligence and professionalism in resolving the concerns expressed by your office and in doing so providing a logical, reasonable procedure that will permit Layman to go forward with its application and provide SSID 239 comfort that it will be properly compensated if the law and facts so justify, and the funds will be available to do so. In addition, my appreciation to Jamie Collins for his patience and professionalism. Based on this I will not be in attendance tomorrow and will comply with a longstanding out-of-state commitment.