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Home My WebLink AboutZ-7980-A Application 2REGISTRATION FORM FOR PERS ONS WISHING TO ADDRESS THE PL . NTNING COMNffSSION This card can be'picked up at any time in the Planning and Development Office, 723 West Markham, Little Rack, Arkansas:- Twish to speak about Ifexra] i�`7 on the agenda. I am opposed:: _� for -Name ,(]�UAALA4' Address Telephone Ti o. _._.. Date ' I REGISTRATION FORM C� FOR PERSONS WISHING TO ADDRESS THE PLANNING COAMUSSION This card can be picked up at any time in the Planning and .Develop®eat Office, 723 West Markham., Little Rack, Arkansas: I I wish to speak about Item it .5`, O/V _ on the agenda. I am opposed for }' Name M .Address .� 1 i'� y� �0 �o�: 2• ( 6 (! Teleg" NO. i' Date• - - REGISTRATION FORM-'.'. FOR PERSONS WISHING TO. ADDRESS THE PLAi�ING COlV1iIV1=ESSION �. This card: eaa be picked up at anytime in the Planning and .Develo - merit Office, 723 West Markham, Little Rock, Arkansas: I•vvish to speak about Item # I am opposed _ A for Name. Address Tei - hone No. Date. on the agenda.- . c�a �e o Ln �t N Existing Structures I rj I i � Tract 1 + Tract 2 a' 2.41 Acre _ 2.10 Acres ;o- n 0 r 25' In ress / oEngrasem I E I I 181.27' 175.00' Tract 3 o o ropose o ocation 00 ew Enterg o Substatio .28 Acr Existing 355.66' Z -7980-A0 ENTERGY *CONDITIONAL USE PERMIT SUBSTATION 6 L 0 CL 0 Z3 w c cn 0 m rn n 3 r-+. m :3CD O CC 0 M cn G CD 0 CD C� cr0- n N I cn CD cn CD 3- cn CD 0 (D rmt-� o O cn W CD cr0 O � n� N CD . � N O O Cl) =3 C: r♦ Q O Q CD CL 0 CL n CD CD X. cn =- CD CD CD CD CD 0 v CD CD n CD cn 11 3 0 O CD v CL O cn O Q 0 CD CD cup CD conn' O n C u O O 0 CD O 3 O w UJ M CD r -i - CD v N 0� O CL Ir �A O CP O Cf) N O N CD n O_ O CD w 0 CD O 1 cn CSD �•7 a CD 0) O O O • V, CD Cr CD cncn (a' o' E n cn O v 3 o' 3 c. 0 O. c CD c o O < CD O n CZ 0� rn O p O M O (Q CD (n C. 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O 0 CDrMIL rr � � CLCD Q --h� CD om 0 � 0 0 (n • �< -0 =r CD C/) I C: 3 CD 0 1 0- 3 = CD 4) <CL CD CD - Carney, Dana From: Jones, James E. Sent: Monday, March 21, 2016 5:47 PM To: Thad Luther Cc: Jim Ferguson; Ellis III, John; Carney, Dana Subject: RE: CAW hydrant Lawson road Thanks Thad this helps a lot. Appreciate the assistance and quick response. The quote to FTN was actually for Entergy. Entergy is required to install one and it appears it fell through the crack during Entergy's reorganization mid 2013. Substation has been in operation for a year or longer. Would you have a new quote prepared and email to John Ellis at Entergy (Ellis III, John LeIIL11 enter .com) whom I have copied on this email. John will follow up with notice to proceed and payment to CAW. John Ellis: Will this be handled via Entergy and you secure a contractor, or does invoice need to addressed to FTN agiain. • 1 requested from the Crystal Fire Department confirmation of location of hydrant so that all are on the same page of where FD wants it located. Upon receipt of email from the Fire Chief, I will forward both you and CAW. James From: Thad Luther [mailto:Thad.Luther@carkw.comj Sent: Monday, March 21, 2016 5:24 PM To: Jones, James E. <jejones@littlerock.org> Cc: Jim Ferguson <Jim.Ferguson @carkw.com> Subject: CAW hydrant Lawson road James, We have a project file on the Substation work that dates back to 2010. According to our staff the project was put on hold to workout some issues with adjacent landowners. After that we didn't hear anything until FTN apparently requested an updated fire hydrant quote in 2013. Then again, nothing; the correspondence you forwarded earlier today (attached) is the latest we have in our files. According to finance, we did not receive a $4621 check from Entergy or FTN during that timeframe. We checked several months after April 10, 2013, and found one $4621 check from PDC Construction that we traced to a fire hydrant installed for Arvest Bank. Hope this helps. Thad City of Little Rock Department of Planning and Development 723 West Markham Street Little Rock, Arkansas 72201-1334 Phone: (501) 371-4790 Fax: (501) 399-3435 or 371-6863 May 23, 2008 Carolyn Jolley 14280 Colonel Glenn Road Little Rock, AR 72210 Dear Citizen: Planning Zoning and Subdivision On behalf of the Little Rock Planning Commission, I would like to thank you for your participation in the May 22, 2008 commission meeting. It is very important to the City staff and the Planning Commission to have citizen input in the planning decision-making process. Agenda item no. "E", Entergy Substation Revised Conditional Use Permit was approved. For additional information, you can contact the Planning staff at 371-4790. Staff responsibilities are as follows: Rezoning and Zoning Variances — Monte Moore Subdivision and Planned Unit Developments — Donna James Conditional and Tower Use Permits — Dana Carney The Planning Commission's action may be appealed to the Board of Directors. The appeal must be filed within thirty (30) days of the Commission's action. The appeal consists of a copy of the executed application and a letter stating the desire to appeal addressed to the Mayor and Board of Directors, c/o City Clerk, City Hall, 500 W. Markham Street, Little Rock, AR 72201. The appellant bears the cost of notification for the Board hearing. Thank you again for your input. Sincerely, FON BO YN Secretary to Little Rock Planning Commission TB:aa Cite as 2011 Ark. App. 285 ARKANSAS COURT OF APPEALS DIVISION III No. CA10-514 TAMMY MCLAIN ET AL. APPELLANTS V. CITY OF LITTLE ROCK PLANNING COMMISSION AND ENTERGY ARKANSAS, INC. APPELLEES Opinion Delivered April 20, 2011 APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTEENTH DIVISION [NO. CV 08-6428] HONORABLE ELLEN B. BRANTLEY, JUDGE AFFIRMED IN PART; REVERSED IN PART JOSEPHINE LINKER HART, Judge Appellants' bring this appeal from the Pulaski County Circuit Court following a jury verdict and the court's entry ofjudgment notwithstanding the verdict. We reverse the circuit court's entry ofJNOV and affirm in all other respects. This dispute conccrns a proposed electrical substation on farm land owned by the Minton Family on Colonel Glenn Road, outside the limits of the City of Little Rock but within its extraterritorial planning jurisdiction. Appellants are neighbors of the property. Appellee Entergy Arkansas, Inc., sought to purchase part of the property and construct an ' Tammy McLain, Faithann Glidden, Michael Glidden, Gary Brown, Diane Davis, Trudy Campbell, Roy Jolley, Carolyn Jolley, Sue Ann Stephens and Howard Stephens, individually and as Trustees of the Howard Grantland Stephens and Sue Ann Stephens Joint Revocable Trust Declaration. Cite as 2011 Ark. App. 285 electrical substation there because the nearest substation was at or near capacity. After considering five potential sites, it determined that the Mintons' property, over which existing electrical transmission lines run, was the best choice. The Mintons authorized Entergy to make two applications to appellee Little Rock Planning Commission on their behalf. Entergy applied for approval of a preliminary plat subdividing the property into three lots, seeking variances for the development of Lot 3 without public street frontage and an increased depth - to -width ratio for Lot 2. Entergy also applied for a conditional use permit (CUP) that would allow it to relocate the access road for Lot 3 from Colonel Glenn Road to Lawson Road. The planning commission approved the applications on the recommendation of the planning department staff. Appellants appealed the grant of the CUP to the Little Rock Board of Directors, which upheld the planning commission's decision. After appellants appealed the approval of the preliminary plat and the CUP to circuit court, Entergy intervened. The circuit court granted partial summary judgment to the city on the issue of whether the Mintons had authorized Entergy to apply for the subdivision plat.' The case was tried de ed for directed verdict against the city on the grounds that it novo to a jury. Appellants mov had not followed its own procedures and that the planning commission lacked jurisdiction over matters within the city's extraterritorial jurisdiction. The trial court denied that motion. 's authority to ale the applicud on nnbehalf ' Appellants cannot challenge Entergythat the land owners because they failed to appeal from the Partial summary judgment g issue. See Taylor v. George, 92 Ark. App. 264, 212 S.W.3d 17 (2045); Van Cures v. Arkansas thi s issue Prof i Bail Bondsman Licensing Bd., s 7h9 Axk. �d theOne $ ssary afhdavits0befo ev the planning had been preserved, Entergy commission acted on the application. 2 Cite as 2011 Ark. �pp. 285 At the conclusion of the trial, appellants' counsel again moved for directed verdict on the same grounds, and the trial court again denied the motion. The jury found in favor of appellees on the application for the CUP but ruled in favor of appellants in regard to the subdivision application and preliminary plat. Appellees then moved for JNOV on the ground that there was no substantial evidence to support the jury's verdict in favor of appellants? After the court granted the motion for JNOV, appellants pursued this appeal. Appellants argue that the trial court erred in granting the motion for JNOV because there was substantial evidence to support the jury's finding that the commission's approval of the subdivision application and preliminary plat was unlawful. They also contend that the planning commission lacked jurisdiction to approve the applications because it is not the legislative body of the city, as contemplated within the applicable statutes. Although we reject appellants' challenge to the planning commission's jurisdiction, we agree with appellants that the jury's verdict was supported by substantial evidence. A trial court may grant a motion for JNOV only if there is no substantial evidence to support the jury verdict and the moving party is entitled to judgment as a matter of law. Talley v. City of North Little Rock, 2009 Ark. 601, —. S.W .3d Substantial evidence is evidence of a sufficient force and character that it will compel a conclusion one way or another; it must force the mind beyond mere suspicion or conjecture. Id. On appeal, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the JNOV was rendered. Id. 3The court denied appellees' motions for directed verdict on the subdivision issue. 3 Cite as 2011 Ark. App. 285 Substantial evidence that the city did not follow its own procedures in approving the subdivision application and preliminary plat was submitted in the testimony of the planning department's director, Tony Bozynski, and the checklist used by the department's staff in determining whether Entergy had submitted all of the necessary documents.' Bozynski, who testified about the commission's procedures, said that the department's staff routinely uses the checklist to ensure that all necessary documents, including a bill of assurance, have been submitted with a preliminary -plat application. This checklist indicated the documents required by various city ordinances and set forth the following boxes to be checked where applicable; "provided & acceptable," "provided but incomplete," "not provided," and "does not apply." In item number 36, this checklist stated that a draft bill of assurance was required by City Ordinance 31-93. That ordinance, which was provided to the jury, stated: "The draft submitted shall use the format provided within the sample draft provided by staff. This format will ensure that the proposed bill of assurance separates those provisions required in the plat by ordinance and those provisions desired by the developer." None of the boxes next to that item in the checklist were checked; instead, the number "36" was circled. According to the checklist, therefore, Entergy did not submit the required draft bill of assurance; in fact, it 'We disagree with appellants' assertion that the city was required to strictly follow its own procedures. The trial court correctly instructed the jury that appellants had the burden of proving by a preponderance of the evidence that the city failed to substantially comply with its own ordinances. See City of Fordyce v. Vaughn, 300 Ark. 554, 781 S.W.2d 6 (1989); Mings v. City of Fort Smith, 288 Ark. 42, 701 S.W.2d 705 (1986); Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983); Rolling Pines Ltd. P'ship v. City of Little Rock, 73 Ark. App. 97, 405 S.W.3d 828 (2001). m Al I New Hydrant - Lawson Road Approximate hydrant location All data provided by PAgis or a PAgis member agency is compiled from various sources for the sole use and benefit of PAgis and N the public agencies it serves. Any use of the data by anyone other than PAgis Is at the sole risk of the user; and by acceptance of this data, the user does hereby hold PAgis harmless and without liability from any claims, costs, or damages. a Printed: Apr 03, 2013 City of Little Rock Department of Planning and Development Planning 723 West Markham Street Zoning and Little Rock, Arkansas 72201-1334 Subdivision Phone: (501) 371-4790 Fax: (501) 399-3435 or 371-6863 May 23,.2008 Jeff Stephens 24 Ashwood Drive Little Rock, AR 72205 Dear Citizen: On behalf of the Little Rock Planning Commission, I would like to thank you for your participation in the May 22, 2008 commission meeting. It is very important to the City staff and the Planning Commission to have citizen input in the planning decision-making process. Agenda item no. "E", Entergy Substation Revised Conditional Use Permit was approved. For additional information, you can contact the Planning staff at 371-4790. Staff responsibilities are as follows: Rezoning and Zoning Variances — Monte Moore Subdivision and Planned Unit Developments — Donna James Conditional and Tower Use Permits — Dana Carney The Planning Commission's action may be appealed to the Board of Directors. The appeal must be filed within thirty (30) days of the Commission's action. The appeal consists of a copy of the executed application and a letter stating the desire to appeal addressed to the Mayor and Board of Directors, c/o City Clerk, City Hall, 500 W. Markham Street, Little Rock, AR 72201. The appellant bears the cost of notification for the Board hearing. Thank you again for your input. Sincerely, T NY BO YNS Secretary to Little nocklanning Commission TB:aa Cite as 2011 Ark. App. 285 simply submitted the blank sample bill of assurance provided by the city, which did not set forth any "provisions desired by the developer," as required by the ordinance. Further, required items 10 (existing and proposed covenants), 14 (request for variances, waivers, or deferrals), 24 (limits of flood way and/or flood plain), 25 (storm drainage analysis), and 26 (preliminary storm drainage plan) were also not checked, but circled. Bozynski testified that the draft bill of assurance submitted by Entergy satisfied ordinance 31-93 and that it is typical for an applicant to submit a blank form with an application for a preliminary plat and to submit a completed form with the final plat. Nevertheless, the record before us does not contain a completed form. It is apparent that the jury did not credit Bozynski's testimony on this issue and that it believed that this sample draft, which was nothing more than a blank form, did not amount to a proposed bill of assurance as contemplated by the ordinance. Accordingly, we reverse the trial court's entry ofJNov.s Appellants also contend that the planning commission lacked jurisdiction to approve the applications and that the trial court erred in rejecting their proffered jury instruction on this issue. Appellants unsuccessfully offered the following instruction: The territorial jurisdiction of the legislative body of the city having a planning commission shall be exclusive and shall include all land lying within five (5) miles of the corporate limits. A planning commission is not a legislative body but functions in an administrative capacity and derives its authority from the legislature. 'In light of our holding on this issue, we need not address appellants' other arguments regarding the city's procedures. 5 Cite as 2011 Ark, App. 285 If you find that the Plaintiffs have proven, by a preponderance of the evidence, that the City of Little Rock Planning Commission did not have authority to approve an applicant's request for a preliminary plat or grant a conditional use permit on a lot, located outside the City of Little Rock's corporate limits, but within the extra territorial jurisdiction, the your [sic] verdict shall be for the Plaintiffs. If not so proven, then your verdict shall be for the City of Little Rock. The extent of the planning commission's jurisdiction was a question of law for the trial court, not the jury, to decide. See St. Louis, I.M. & S.R. Co. v. State, 102 Ark. 205, 143 S.W. 913 (1912). The trial court did not, therefore, err in refusing to give this instruction. Nevertheless, appellants contend that the trial court should have ruled that the planning commission lacked jurisdiction. They assert that, if property is located outside the city limits, the planning commission has no authority to administer land -use regulations, and that only the city board of directors, the "legislative body," may do so, pursuant to Arkansas Code Annotated section 14-56-413 (Repl. 1998). We disagree. We construe this statute, in the context of the entire municipal -planning subchapter, Arkansas Code Annotated sections 14- 56-401 through 14-56-426 (Repl. 1998 & Supp. 2009), as permitting a city's board of directors to delegate to the planning commission the authority to regulate land use on property outside city limits but within the city's extraterritorial -planning jurisdiction. Arkansas Code Annotated section 14-56-413(a)(1)(A) states, "The territorial jurisdiction of the legislative body of the city having a planning commission, for the purpose of this subchapter, shall be exclusive and shall include all land lying within five (5) miles of the corporate limits." Section 14-56-413(b)(1) gives the planning commission jurisdiction to act z Cite as 2011 Ark. App. 285 within the territorial jurisdiction of the city. It states that the planning commission "shall designate the area within the territorial jurisdiction for which it will prepare plans, ordinances, and regulations." Arkansas Code Annotated section 14-56-414 (Repl. 1998) provides that, after completing a planning -area map, the planning commission may prepare and adopt land use, community facilities, master street, and other plans significant to the health, safety, and general welfare of the city and its environs. Arkansas Code Annotated section 14-56-415 (Repl. 1998) states that the planning commission will then transmit the plans to the city board for enactment, recommended ordinances, and regulations to carry out the plans. After the adoption of a master street plan, the planning commission "may prepare and shall administer, after approval of the legislative body, regulations controlling the development of land," including the subdivision of land into lots, the provision of access to those lots, and the extension of utilities. Ark. Code Ann. § 14-56-417(a) (Supp. 2009). We review issues of statutory construction de novo, as it is for this court to determine what a statute means. Johnson v. Dawson, 2010 Ark. 308, _ S.W.3d __. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007). We construe the statute so that no word is left void, superfluous, or insignificant; and mcaning and effect are given to every word in the statute if possiblc. Id. When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. When a statute is ambiguous, 7 r is Cite as 2011 Ark. App. 285 however, we must interpret it according to the legislative intent, and its review becomes an examination of the whole act. Johnson, supra. We must reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. Although section 14-56-413 refers to "the legislative body of the city," we cannot say that the legislature intended to limit the city's extraterritorial jurisdiction in the manner urged by appellants. As a whole, the statutory scheme plainly demonstrates that the planning commission is authorized, as an advisory body to the board of directors, to approve preliminary plats within the city's extraterritorial jurisdiction. See City ofJacksonville v. City of Sherwood, 375 Ark. 107, 289 S.W.3d 90 (2008); Mings v. City of Fort Smith, 288 Ark. 42, 701 S.W.2d 705 (1986). Affirmed in part; reversed in part. ROBBINS and HOOFMAN, JJ., agree. 8 Page 1 of 1 Carney, Dana From: Bozynski, Tony Sent: Friday, November 20, 2009 4:12 PM To: James, Donna; Carney, Dana Subject: FW: McLain, et al. vs. City of Little Rock and Entergy (Notice of Appeal) FYI. -----Original Message ----- From: Fields, Amy Sent: Friday, November 20, 2009 3:56 PM To: Bozynski, Tony Subject: FW: McLain, et al. vs. City of Little Rock and Entergy (Notice of Appeal) It may never end. Have a great Thanksgiving. Amy From: Ranee Glidden[ma i Ito: satterfield law@comcast. net] Sent: Friday, November 20, 2009 3:53 PM To: wdarling@entergy.com; Fields, Amy Cc: 'Satterfield Law Firm' Subject: McLain, et al. vs. City of Little Rock and Entergy (Notice of Appeal) Attached is a Notice of Appeal that was filed today. Ranee Glidden Legal Assistant to Randy Satterfield_ SATTERFIELD LAW FIRM, PLC (501)376-0411 /fax: (501)374-2834 HYPERLINK"http:llwww.s.atterfieidlaw.com" www.satterfieldia..w.com NOTICE. if this communication has been sent to you as our client, the information contained in this electronic message is protected by the attorney-client privilege or the attorney work product privilege. It is intended solely for the addressees hereof and Privileges are not waived by transmission hereof and receipt by unintended persons. If this transmission is received in error, please delete the message Immediately. Receipt of electronic mail or reply to electronic mail does not establish an attorney-client relationship between sender and recipient. Any electronic communication from our firm by a non -attorney employee is never a legal opinion nor legal advice to any Individual or legal entity, and never tax adviceto clients or non -client, nor legal advice if sent in response to potential clients who have inquired but with whom a formal attorney-client relationship has not been established. 11/23/2009 G. Randolph Satterfield SATTERFIELD LAW FIRM, PLC Little Rock Location Cynthia S. Moody ATTORNEYS AT LAW 721 W. 2nd Street Mary C. Galchns Little Rock, AR 72201 Laura E. Levine' All Mail & Fax For Little Rock and Benton: (501) 376-0411 • Fri—Lly In F.rtft ilte P. 0. BOX 1010 Of Counsel Little, Rock; AR 72203-1010 ,. Benton Location Virginia "Ginger"Atkinson - -- - :-'SUfN•lvain Email &Web Site Facsimile: (501) 374-2834 / Toll Free: (877) 273-4911 Benton, AR 72015 (501) 315-1819 satterfieldlaw@comcast.net www.satterfieldlaw.com Northwest Arkansas Office: 231 West Mountain, Fayetteville, AR 72701 / (479) 521-1105 / fax: 479 521-1877 November 20, 2009 Mr. Webster Darling Entergy Services, Inc. Legal Services Department P.O. Box 551 Little Rock, Arkansas 72203-0551 Via Email:, wdarlin i entergy.com Amy Beckman Fields Via Email: afields littlerock.or Deputy City. Attorney. Office of the City Attorney 500 West Markham, Ste, 310 Little Rock, Arkansas 72201 RE: McClain, et al. vs. City of Little Rock Planning Commission Entergy Arkansas, Intervenor; Pulaski County Circuit No. CV2008-6428 Dear Webster and Amy: Enclosed please find a file -marked copy of my Notice of Appeal and my letter to the Court Reporter. Very truly yours, G. Randatterfield P GRS/arg Enclosures: as stated IN THE CIRCUIT COURT OF PULASKI,COUNTY, ARKANSAS 16TH DIVISION TAMMY McLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 APPELLANTS FI EC1 i 1 2r;,/2 0," CITY OF LITTLE ROCK PLANNING COMMISSION APPELLEE ENTERGY ARKANSAS, INC. INTERVENOR/APPELLEE NOTICE OF APPEAL AND DESIGNATION OF COMPLETE RECORD Tammy McClain, Faith Ann Glidden, Michael L. Glidden, Gary W. Brown, Diane Davis, Trudy Campbell, Roy R. Jolley, Carolyn S. Jolley, Sue Ann Stephens and Howard Stephens, individually and as Trustees of the Howard Grantland Stephens and Sue Ann - Stephens Joint Revocable Trust Declaration dated the 28th day of July, 1997, Appellants herein; hereby inotify`this CoU f; the City of Little Rock Plai&ing'Coii r issibri;--E`litergy Arkansas, Inc., the Arkansas Attorney General, through their respective attorneys and to the Circuit Judge, that the Appellants hereby appeal, to the Court of Appeals, the judgment arising from the partial jury verdict in favor of City of Little Rock Planning Commission and Entergy Arkansas, Inc., entered in this case on September 22, 2009; and the post trial judgment notwithstanding the verdict, which set aside the partial jury verdict in favor of the Appellants herein, entered on October 22, 2009. Appellants Tammy McClain, Faith Ann Glidden, Michael L. Glidden, Gary W. Brown, Diane Davis, Trudy Campbell, Roy R. Jollq,, Carolyn S. Jolley, Sue Ann Stephens and Howard Stephens, individually and as Trustees of the Howard Grantland Stephens and Sue Ann Stephens Joint Revocable Trust Declaration dated the 28th day of July, 1997, also appeal all of the Circuit Trial Court's evidentiary rulings, orders, rejection of proffered jury instructions, and judgments rendered prior to the judgment notwithstanding the Appellants' verdict that were adverse to the Appellants, that shaped those judgments. Appellants designate the complete Circuit Court record — including all the evidence, transcripts, of all hearings and testimony, and all pleadings and rulings filed with the circuit clerk and the Circuit Court, as the record on appeal. Appellants have ordered the record from the circuit clerk and the transcript from the court reporter of the proceedings -in this case, and have made financial arrangements with the .court -reporter.: as .required by Ark. -Code Anna § 46-13-5.10(c): - - Dated this 20th day of November, 2009. G. Randolp "Randy-" Satterfs1 (Ar . Bar 81140) Satterfield Law Firm, PLC Attorney for the Appellants P.O. Box 1010 Little Rock, AR 72203-1010 Tele: (501) 376-0411/Fax: (501) 374-2834 CERTIFICATE OF SERVICE I, G. Randolph Satterfield, do hereby certify that I have mailed a copy of the above and foregoing Notice of Appeal with sufficient postage thereon, to Mr. Webster Darling, Attorney for Entergy Arkansas, Inc., P.O. Box 551, Little Rock, Arkansas 72203-0551; and.Ms: Amy Beckman -Fields; Attorney -for -the City..ofUttle Rock,.. _- Planning Commission, City Hall - Suite 310, 500 West Markham, Little Rock, Arkansas, 72201; the Arkansas Attorney General, 323 Center Street, Suite 200, Little Rock, Arkansas 72201; and the Honorable Ellen Bass Brantley, Pulaski Co my Circuit Judge, 16th Division, 401 W. Markham, Room 310, ' e , Arkans , 2201 on this 6__tA day of November, 2009. F �• G. Randolph Satter fil d (Ark. Bar 40) G. Randolph Satterfield SATTERFIELD LAW FIRM, PLC Cynthia S. Moody ATTORNEYS AT LAW Little Rack Location Mary C. Galchus 721 W. 2nd Street Laura E. Levine` All Mail & Fax For Little Rock and Benton: Little Rock, AR 72201 • primarily In PeymevID, P. O. Box 1010 (501) 376-0411 Of Counsel Little Rock, AR 72203-1010 Benton Location Virginia "Ginger" Atkinson Facsimile: (501) 374-2834 / Toll Free: (877) 273-4911 501 N. Main Email & Web Benton, AR 72015 sSite satterfieldlaw@comeast.net Northwest Arkansas Office: (501) 315-1819 www.satterfieldlaw.com Mountain Fayetteville, AR 72701 / 479 521-1105 / fax: 479 521-1877 November 20, 2009 Mr. Bill McFarland Court Reporter 161h Division Pulaski'Counry Codrthous6,"Ro6m 37.0 - 401 W. Markham Street Little Rock, Arkansas 72201 Re: Transcript Order, Tammy McLain, et al. v. City of Littie Rock Pulaski County Circuit Court Case No. CV -2008-6428 Dear Bill: This letter will serve as my formal request of all transcripts in the above styled matter including, but not limited to the jury trial, hearings, pre-trial conferences or any other matter for which a transcript is available. Please let me know what financial arrangements need to be made, so that I can ensure a timely completion of this request.for appeal purposgs., As always, do not hesitate to call me if you have any questions or concerns regarding this matter. I appreciate your attention to this request, and I look forward to hearing from you in response to my inquiry about financial arrangements to be made. Very truly yo s, G. Randolph "Randy" Satterfie GRS/arg OFFICE OF THE CITY ATTORNEY 500 West Markham, Ste. 310 Little Rock, Arkansas 72201 Amy Beckman Fields Deputy City Attorney �` October 12, 2009 VIA HAND DELIVERY Honorable Ellen Brantley Pulaski County Circuit Court, 16th Division 401 W. Markham, Suite 310 Little Rock, AR 72201 Telephone (501) 371-4527 Telecopier (501) 371.4675 Re: Tammy McLain v. City of Little Rock Planning Commission Pulaski County Circuit Court No. CV -2008-6428 Dear Judge Brantley: Please find enclosed a file -marked copy of the City's reply to response to motion for judgment notwithstanding the verdict and brief in support, which have been filed this date. Thank you for your consideration. ABF:dab Enclosure cc/enc: Randy Satterfield (via email and U.S. mail) Web Darling (via email and U.S. mail) Tony Bozynski Sincerely, i � r Amy Beckman fields Deputy City Attorney iDi f:A. d,1 u IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 16TH DIVISION TAMMY McLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, MARILYNN M. BAEYENS, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 CITY OF LITTLE ROCK PLANNING COMMISSION ENTERGY ARKANSAS, INC. FILED Wk/12I20119 1Z%56%14 Par b'Prien Pul-nsEd Circuit 11�rk: L'r•.' i C�`� BRIEF IN SUPPORT OF CITY OF LITTLE ROCK'S REPLY TO RESPONSE TO MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT APPELLANTS APPELLEE INTERVENOR Apgellants make several statements and arguments in their brief in support of their response to the City's Motion for Judgment Notwithstanding the Verdict. However, few, if any, of the statements and arguments address the issue raised by the City's motion. The City has moved for JNOV because there was no substantial evidence from which -the jury could find that the appellants met their burden of proof, as instructed by the Court, in order to reach a verdict in favor of the Appellants on the appeal of the preliminary plat and subdivision. The City acknowledges, and has always acknowledged, that the approvals of the preliminary plat, subdivision and revised conditional use permit were administrative actions. If they had been legislative actions, this Court would not have had jurisdiction pursuant to Ark. Code Ann. § 14-56-425 to hear this case as an appeal and a de novo review of the matter would have violated the separation of powers doctrine. See City of Fort Smith v. McCutchen, 372 Ark. 541, 544-45 279 S.W.3d 78, 81 (2008). Appellants state in their brief that the Court sustained most of the City's objections to Appellants' attempts to submit into evidence the procedural law of the City on the basis that the Court would instruct the jury on the law. Appellants additionally state that the Court rejected Appellants' proffered jury instruction citing Ark. Code Ann. § 14-56-413 and Appellants' proffered jury instruction titled "Failure to Follow Own Procedures." The City disputes any implication that the Court did not allow the jury to hear any evidence or instruction on the City's ordinances. As set forth in the City's brief in support of its motion for JNOV, the jury did hear testimony from Tony Bozynski about the requirements of the City's ordinances with respect to preliminary plats and subdivisions. If Appellants felt that the testimony and evidence admitted during the trial failed to inform the jury of what the City's ordinances require, Appellants had the opportunity to request that the Court instruct the jury on the City's ordinances by submitting proposed jury instructions. Appellants did not submit any such instructions to the Court or otherwise request that the Court instruct the jury as to the legal requirements for subdivision and preliminary plat applications as established by City ordinance. With respect to the proposed jury instruction citing Ark. Code Ann. § 14-56-413, the Court held that the issue of whether only the City Board of Directors could take any action with respect to property in the City's extraterritorial jurisdiction was a purely legal issue that should have been raised by Appellants by motion. Discussion of whether only the Board has jurisdiction to take any actions outside the City limits but within the extraterritorial jurisdiction also does not have any relevance to the City's motion that is pending before the Court. The motion that is before the Court is the City's motion; and the issue that the motion raises is -2- whether there was substantial evidence for the jury to Tina in ravor or 11ppc11a ILL uaZ;U ULI U,V instructions they were given. With respect to the proposed instruction "Failure to Follow Own Procedures," the Court modified the instruction because the instruction submitted by Appellants does not contain a correct statement of the law. While Appellants' counsel has stated repeatedly throughout the course of this litigation, both to the Court and to the jury, that the City is required to follow its own procedures or its actions are void, Appellants have not offered any supporting authority for that statement. It is undersigned counsel's good faith belief, based on extensive research of both Arkansas statutes and cases, that there is not any supporting authority for that statement. Neither Rolling Pines Ltd. Partnership v. City of Little Rock, 73 Ark. App. 97, 40 S.W.3d 828 (2001), i nor City of Lowell v. M& NMobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996), cited by Appellants in their proposed instruction and their brief, have anything to do with whether or not a city has followed its own procedures. That was not even an issue in either of those cases. The correct statement of the law is what the jury was instructed: that the Appellants had the burden of proving by a preponderance of the evidence that the City failed to substantially comply I with its ordinances. See, e.g., City of Fordyce v. Vaughn, 300 Ark. 554, 781 S.W.3d 6 (1989), Mings v. City of Fort Smith, 288 Ark. 42, 701 S.W.2d 705 (1986), Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). In addition, whether or not the Court gave the instruction "Failure to Follow Own Procedures" submitted by Appellants has absolutely no relevance to the issues raised by the City's motion. Appellants apparently take issue with the City citing Mings in its original brief. Appellants' argument is misplaced. During the instruction conference when the jury instructions were finalized, the Court determined that it was appropriate to instruct the jury that the -3 - Appellants have the burden of proving that the City failed to substantially comply with its ordinances. Mings simply discusses what substantial compliance is. The issue before the Court is not whether the jury was instructed correctly; it is not whether the approval of the preliminary plat and subdivision was administrative or legislative; it is not whether or not the approval of the preliminary plat was presented to the City's Board of Directors. The issue before the Court for purposes of the City's JNOV motion is whether there was substantial evidence, based on the instructions given to the jury, for the jury to find that the City failed to substantially comply with its own ordinances in approving the preliminary plat and subdivision. Appellants seem to argue that the jury could have somehow found in their favor based on Ark. Code Ann. § 14-56-413(a)(1)(A), which provides: "The territorial jurisdiction of the legislative body of the city having a planning commission, for the purpose of this subchapter, shall be exclusive and shall include all land lying with five (5) miles of the corporate limits." To state the obvious, Ark. Code Ann. § 14-56-413 is not a City ordinance, and the jury was instructed that Appellants had the burden of proving that the City failed to substantially comply with its ordinances. As the Court informed Appellants' counsel at the conclusion of the trial, it was not appropriate to instruct the jury on that issue because it is a purely legal issue that should have been raised by motion prior to trial. The parties are before the Court on the City's motion. Appellants' references to Ark. Code Ann. § 14-56-413 are not relevant to the City's motion, and the Appellants have not made any motions seeking a determination that the Planning Commission did not have the authority to make administrative decisions outside the City limits but within the extraterritorial jurisdiction. In inserting this argument into their response to the City's Motion for Judgment Notwithstanding -4- I the Verdict, the Appellants appear to be attempting to come through the "back door" to raise an issue that should have been made by motion prior to trial. Nothing related to Ark. Code Ann. § 14-56-413 has any bearing on the pending motion before the Court. However, because Appellants continue to assert this argument, the City feels that it is necessary, in an abundance of caution, to address the issue raised by Appellants in a substantive manner. In doing so, the City does not waive its position that this issue is not relevant to the City's JNOV motion. It seems to be Appellants' argument that if property is located outside the City limits, pursuant to Ark. Code Ann. § 14-56-413(a)(1)(A), only the City Board of Directors may administer any land use regulations and that the City's Planning Commission is without authority to do so. Appellants' reading of the statute is not accurate. Appellants have pulled one sentence out of an entire subchapter devoted to municipal planning and are attempting to apply that sentence out of context. Ark. Code Ann. § 14-56-401 — 14-56-426 gives cities the authority to engage in municipal planning and sets out the framework within which those plans are adopted and administered. The subchapter authorizes the legislative body of the municipality to create a planning commission and to "confer on the commission the powers necessary to carry out the municipal plan." Ark. Code Ann. § 14-56-404 (emphasis added). The subchapter states that one of the purposes of the planning commission is to prepare and administer planning regulations. Ark. Code Ann. § 14-56-411. Ark. Code Ann. § 14-56-413 designates the territorial jurisdiction of the legislative body with a planning commission for the purposes of the subchapter. Ark. Code Ann. § 14-56-413(b)(1) gives the planning commission the authority to designate the area within the territorial jurisdiction for which it will prepare plans, ordinances, and regulations. After the area is designated and a planning area map completed, the commission may prepare - 5 - and adopt a Land Use Plan, Community Facilities Plan, Master Street Plan and other plans that are significant to the health, safety and general welfare of the city and its environs. Ark. Code Ann. § 14-56-414. The plans are then transmitted by the planning commission to the legislative body for enactment, recommended ordinances and regulations to carry out the plan. Ark. Code Ann. § 14-56-415. After a master street plan has been adopted, the planning commission may prepare and "shall administer" regulations controlling the development of land, including the subdivision of land. Ark. Code Ann. § 14-56-417. The genesis of Ark. Code Ann. § 14-56-401 — 14-56-426 is Act 186 of 1957, with various amendments throughout the years. "The basic rule of statutory construction is to give effect to the intent of the legislature, making use of common sense." Brewer v. Ark. Dep't of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196, 200 (2001). "In determining the intent of the legislature, this court must look at the whole act and, as far as practicable, give effect to every part, reconciling provisions to make them consistent, harmonious, and sensible." Southwestern Bell Tel. Co. v. Arkansas Pub, Serv. Comm'n, 69 Ark. App. 323, 333 13 S.W.3d 197, 203 (2000). In looking at the whole act, common sense and the plain language of the subchapter dictate against a conclusion that the legislature intended for a planning commission to be permitted to administer regulations controlling the development of land within the city limits, but not when the property in question is outside the city limits but within the extraterritorial jurisdiction. That is not what Ark. Code Ann. § 14-56-413 says and such an interpretation is clearly not in line with the intent of the legislature when the entire subchapter is read as a whole. Appellants state that Mr. Bozynski "had trouble explaining why certain submissions and procedural requirements on the preliminary plat check list were not completed, or simply circled without explanation" and states that this is evidence that normal procedural requirements were not complied with. This statement does not address the substance of the City's motion. Appellants' burden was to prove that the City failed to substantially comply with its own ordinances. Mr. Bozynski testimony regarding the checklist does not constitute substantial evidence from which the jury could have found the City did not comply with its ordinances and Appellants do not even attempt to explain how this testimony could support such a finding. Appellants also list documentary evidence that was presented to the jury, again without explanation of how this evidence could support a finding of non-compliance by the City with its ordinances. The City will address each of the exhibits identified by Appellants in their response: (1) Plaintiffs' Exhibit 1 — The City acknowledges that the minutes of the proceedings regarding both the revised conditional use permit and the preliminary plat were introduced into evidence. Plaintiff offers no explanation of what may be contained in these minutes that would support a finding that the City failed to comply with its ordinances. In fact, there is nothing contained within these minutes from which the jury could have found that the City failed to comply with its ordinances. (2) Plaintiffs Exhibit 2 — The issue of the Bill of Assurance has been addressed in the City's original brief and will not be repeated here except to say that there is not substantial evidence from which the jury could find that the City failed to comply with its ordinance that requires submission of a draft bill of assurance. The evidence before the Court only supports a conclusion that the applicant submitted a draft bill of assurance. With respect to the affidavits of the property owners, the Court granted summary judgment to the City on the issue of whether the owners of the property authorized Entergy to act on their behalf. (3) Plaintiffs Exhibit 3 — The issues of the bill of assurance and the affidavits of the property owners have been completely addressed by the City. MR (4) Plaintiff's Exhibit 6 — Mr. Bozynski testified at trial that deferral of street improvements requirements must be accomplished by ordinance because it is an amendment of the Master Street Plan. An ordinance was passed. There is nothing contained within Plaintiff's Exhibit 6 from which the jury could find that the City failed to comply with its own ordinances, (5) Plaintiff s Exhibit 4 — This exhibit deals with the refusal of the Board of Directors to rescind the approval of the Revised Conditional Use Permit. The verdict of the jury in favor of the City and Entergy is not the subject of a motion pending before the Court. As clearly set out in the City's Motion for Judgment Notwithstanding the Verdict, the motion requests JNOV only with respect to the verdict in favor of the Appellants on their appeal of the City's approval of the preliminary plat and subdivision. (6) Plaintiff s Exhibit 5 — Because Appellants only make a general statement, the City can only speculate as to what Appellants mean when they state that this exhibit reflects inconsistencies in Entergy's efforts on behalf of the property owners. Appellants fail to identify any specific thing contained within this exhibit from which the jury could find that the City did not comply with its ordinances. In fact, there is also nothing contained within this exhibit from which the jury could have made such a finding. When all the evidence is viewed in the light most favorable to Appellants, there was still no substantial evidence from which the jury could have concluded that the City failed to follow its ordinances in approving the preliminary plat and subdivision application. Fair-minded persons could not have drawn the conclusion reached by the jury. Appellants make a totally unsupported statement that the jury was presented with conflicted testimony and the jury could decide who was telling the truth; and that it appears the jury believed the Appellants and their witnesses over the witness of the City and Entergy. The City must point out that Appellants offer not one example of any conflicting testimony, much less how that testimony, whatever it might be, could support a finding that the City failed to substantially comply with its ordinances. As set forth completely in its original brief, the City has gone through the testimony and other evidence that could even remotely be considered to be related to the issue of whether the City followed its own ordinances or not. In doing so, the City established that there was no substantial evidence from which the jury could find in favor of the Appellants onhe issue of the preliminary plat and subdivision by applying the law as instructed by the Court. Appellants in their response have not identified one word of testimony or on te piece of documentary evidence from which the jury could find noncompliance. Appellants have done nothing but make generalized statements, not pointed to any real evidence that was presented to the jury. To the extent that Appellants are requesting judgment notwithstanding the verdict regarding the verdict in favor of the City and Entergy on the basis of Ark. Code Ann. § 14-56- 413, Appellants have failed to comply with Ark. R. Civ. P. 50, which requires that a motion for directed verdict must be made at the close of all the evidence. The City does not recall Appellants moving for directed verdict on that basis at the close of all the evidence. Even if the City is incorrect and a directed verdict motion was made at the close of all the evidence, Appellants have failed to comply with Ark. R. Civ. P. 50(b)(1), which provides that motion for judgment notwithstanding the verdict shall be made within ten days of entry of judgment. Inserting a sentence asking for relief at the end of a response brief does not constitute a motion. The City has established that it is entitled to judgment notwithstanding the verdict on the appeal of the approval of the preliminary plat and subdivision. The City respectfully requests that its motion be granted and that the Court enter judgment in favor of the City and Entergy on the appeal of the preliminary plat and subdivision approval. Respectfully Submitted: Thomas M. Carpenter City A tto racy -�-`- By: G'X Amy BeckniL 89058) Deputy City Attorney City Hall — Suite 310 500 West Markham Little Rock, AR 72201 (501) 371-4527 CE-17T-IFICAT-E-OF SERVICE I hereby certify that a copy of the foregoing pleading has been served upon G. Randolph "Randy" Satterfield, Satterfield Law Firm, PLC, P.O. Box 1010, Little Rock, Arkansas, 72203, and Webster Darling, Entergy Services, Inc., P.O. Box 551, Little Rock, Arkansas, 72203-0551, by e-mail and by placing the same in the U.S. Mail, postage prepaid, this _J:J�P�Yrof October, 2009. — Amy B0CkjmFk_fl ( s -10- IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 16TH DIVISION TAMMY McLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, MARILYNN M. BAEYENS, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 CITY OF LITTLE ROCK PLANNING COMMISSION ENTERGY ARKANSAS, INC. F ILCL+ i r. 1, iJ0,1 1•J•44.4U Fear ��`�;`ri ct� Gill?c L•e i'i rrL:lt �`:j?r-l; APPELLANTS APPELLEE INTERVENOR CITY OF LITTLE ROCK'S REPLY TO RESPONSE TO MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT Comes Appellee, City of Little Rock ("City"), by and through its attorneys, Thomas M. Carpenter, City Attorney, and Amy Beckman Fields, Deputy City Attorney, and for its Reply to Response to Motion for Judgment Notwithstanding the Verdict, states: 1. In its Motion for Judgment Notwithstanding the Verdict, the City established that there was no substantial evidence from which the jury could have found in favor of the Appellants on their appeal of the City's approval of the preliminary plat and subdivision application. 2. Appellants' response to the City's Motion for Judgment Notwithstanding the Verdict does not provide support for the Appellants' contention that the City's motion should be denied. 3. The City and Intervenor Entergy Arkansas, Inc. (`Entergy") are entitled to judgment as a matter of law on the appeal of the approval of the preliminary plat and subdivision. 4. The City's memorandum brief accompanies this reply. WHEREFORE, Appellee, City of Little Rock, prays that its Motion for Judgment Notwithstanding the Verdict be granted; that judgment be entered in favor of the City and Entergy on the appeal of the approval of the preliminary plat and subdivision; and for all other just and proper relief to which the City may be entitled. Respectfully Submitted: Thomas M. Carpenter City Atto� By: Xm' y Beck ma ie s (89055) Deputy City Attorney City Hall — Suite 310 500 West Markham Little Rock, AR 72201 (501) 371-4527 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been served upon G. Randolph "Randy" Satterfield, Satterfield Law Firm, PLC, P.O. Box 1010, Little Rock, Arkansas, 72203, and Webster Darling, Entergy Services, Inc., P.O. Box 551, Little Rock, Arkansas, 72203-0551, by e-mail and by placing the same in the U.S. Mail, postage prepaid, this th day of October, 2009. Amy Beckman 'el -2- Amy Beckman Fields Deputy City Attorney OFFICE OF THE CITY ATTORNEY 500 West Markham, Ste. 310 Tattle Rock, Arkansas 72201 October 15, 2009 Rosie Tolbert Pulaski County Cir Court, 16th Division 401 W. Markh , Suite 310 Little Roc, R 72201 Telephone (501) 3714527 Telecopier (501) 371.4675 Re: Tammy McLain v. City of Little Rock Planning Commission Pulaski County Circuit Court No. CV -2008-6428 Dear Rosie: Please find enclosed the signed notice of hearing in the above -referenced case. If you have any questions, please let me know. Sincerely, ,- Amy Beckman fields Deputy City Attorney Enclosure cc/enc: Randy Satterfield Web Darling Tony Bozynski ELLEN B. BRANTLEY SIXTEENTH DIVISION CIRCUIT COURT 401 W. Markham, Suite 310 Little Rock, AR 72201 (501) 340-8542 October 12, 2009 AMY BECKMAN FIELDS DEPUTY CITY ATTORNEY OFFICE OF CITY ATTORNEY 500 W MARKHAM SUITE 310 LITTLE ROCK AR 72201 RE: CV 2008 006428 TAMMY MCLAIN VS. CITY OF LITTLE ROCK PLANK The subject case is set for JUDGMENT NOT WITHSTANDING VERDICT (30 MIN) in the 16th Division of Pulaski County Circuit Court on 10/22/09 03:30 PM. IT IS THE RESPONSIBILITY OF THE PARTIES AND ATTORNEYS TO NOTIFY THE CASE COORDINATOR IMMEDIATELY OF ANY PARTIES OR COUNSEL INADVERTENTLY OMITTED FROM THIS NOTICE. Please acknowledge receipt of this notice within ten (10) days. urs Tru�y. ELLEN B. BRANTLEY CIRCUIT JUDGE Copies to: WILLIAM WEBSTER DARLING G. RANDOLPH SATTERFIELD Rec i�i�s cknowledged f the above notice this!�ay of 20. Please return this notice to: Rosie Tolbert, Case Coordinator, Sixteenth Division Circuit Court, Pulaski County Courthouse, 401 W. Markham, Suite 310, Little Rock, AR 72201. Thank you. OFFICE OF THE CITY ATTORNEY 500 West Markham, Ste. 310 Little Rock, Arkansas 72201 Amy Beckman Fields Deputy City Attorney October 12, 2009 VIA HAND DELIVERY Honorable Ellen Brantley Pulaski County Circuit Court, 16th Division 401 W. Markham, Suite 310 Little Rock, AR 72201 Telephone (501) 371-4527 Telecopier (501) 371-4675 Re: Tammy McLain v. City of Little Rock Planning Commission Pulaski County Circuit Court No. CV -2008-6428 Dear Judge Brantley: Please find enclosed a file -marked copy of the City's reply to response to motion for judgment notwithstanding the verdict and brief in support, which have been filed this date. Thank you for your consideration. Sincerely, Amy Beckman ields Deputy City Attorney ABF:dab Enclosure cc/enc: Randy Satterfield (via email and U.S. mail) Web Darling (via email and U.S. mail) Tony Bozynski IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 16TH DIVISION TAMMY MCLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, MARILYNN M. BAEYENS, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 CITY OF LITTLE ROCK PLANNING COMMISSION ENTERGY ARKANSAS, INC. LLU, iUi iii z. U3 i•S-44:4t1 u}r A'�'riar� �'eie�c!•e t•;rr��;l. k.]r'!' ... _ .. .:.: •�: a•.e —i •—pis .. o•. APPELLANTS APPELLEE INTERVENOR CITY OF LITTLE ROCK'S REPLY TO RESPONSE TO MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT Comes Appellee, City of Little Rock ("City"), by and through its attorneys, Thomas M. Carpenter, City Attorney; and Amy Beckman Fields, Deputy City Attorney, and for its Reply to Response to Motion for Judgment Notwithstanding the Verdict, states: 1. In its Motion for Judgment Notwithstanding the Verdict, the City established that there was no substantial evidence from which the jury could have found in favor of the Appellants on their appeal of the City's approval of the preliminary plat and subdivision application. 2. Appellants' response to the City's Motion for Judgment Notwithstanding the Verdict does not provide support for the Appellants' contention that the City's motion should be . denied. 3. The City and Intervenor Entergy Arkansas, Inc. ("Entergy") are entitled to judgment as a matter of law on the appeal of the approval of the preliminary plat and subdivision. 4. The City's memorandum brief accompanies this reply. WHEREFORE, Appellee, City of Little Rock, prays that its Motion for Judgment Notwithstanding the Verdict be granted; that judgment be entered in favor of the City and Entergy on the appeal of the approval of the preliminary plat and subdivision; and for all other just and proper relief to which the City may be entitled. Respectfully Submitted: Thomas M. Carpenter City Atto y r By: Amy Beclun ie hs(89058) Deputy City Attorney City Hall — Suite 310 500 West Markham Little Rock, AR 72201 (501) 371-4527 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been served upon G. Randolph "Randy" Satterfield, Satterfield Law Firm, PLC, P.O. Box 1010, Little Rock, Arkansas, 72203, and Webster Darling, Entergy Services, Inc., P.O. Box 551, Little Rock, Arkansas, 72203-0551, by e-mail and by placing the same in the U.S. Mail, postage prepaid, this,th day of October, 2009. fes] Arriy Beckman �el -2- IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 16TH DIVISION TAMMY McLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, MARILYNN M. BAEYENS, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 CITY OF LITTLE ROCK PLANNING COMMISSION ENTERGY ARKANSAS, INC. FILED W/1212039 13956% 14 Fit IT Er? er, Pulaski Gl lrf-,_xi � r:l p r : BRIEF IN SUPPORT OF CITY OF LITTLE ROCK'S REPLY TO RESPONSE TO MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT APPELLANTS APPELLEE INTERVENOR Appellants make several statements and arguments in their brief in support of their response to the City's Motion for Judgment Notwithstanding the Verdict. However, few, if any, of the statements and arguments address the issue raised by the City's motion. The City has moved for JNOV because there was no substantial evidence from which -the jury could find that the appellants met their burden of proof, as instructed by the Court, in order to reach a verdict in favor of the Appellants on the appeal of the preliminary plat and subdivision. The City acknowledges., and has always acknowledged, that the approvals of the preliminary plat, subdivision and revised conditional use permit were administrative actions. If they had been legislative actions, this Court would not have had jurisdiction pursuant to Ark. Code Ann. § 14-56-425 to hear this case as an appeal and a de novo review of the matter would have violated the separation of powers doctrine. See City of Fort Smith v. McCutchen, 372 Ark. 541, 544-45 279 S.W.3d 78, 81 (2008). Appellants state in their brief that the Court sustained most of the City's objections to Appellants' attempts to submit into evidence the procedural law of the City on the basis that the Court would instruct the jury on the law. Appellants additionally state that the Court rejected Appellants' proffered jury instruction citing Ark. Code Ann. § 14-56-413 and Appellants' proffered jury instruction titled "Failure to Follow Own Procedures." The City disputes any implication that the Court did not allow the jury to hear any evidence or instruction on the City's ordinances. As set forth in the City's brief in support of its motion for JNOV, the jury did hear testimony from Tony Bozynski about the requirements of the City's ordinances with respect to preliminary plats and subdivisions. If Appellants felt that the testimony and evidence admitted during the trial failed to inform the jury of what the City's ordinances require, Appellants had the opportunity to request that the Court instruct the jury on the City's ordinances by submitting proposed jury instructions. Appellants did not submit any such instructions to the Court or otherwise request that the Court instruct the jury as to the legal requirements for subdivision and preliminary plat applications as established by City ordinance. With respect to the proposed jury instruction citing Ark. Code Ann. § 14-56-413, the Court held that the issue of whether only the City Board of Directors could take any action with respect to property in the City's extraterritorial jurisdiction was a purely legal issue that should have been raised by Appellants by motion. Discussion of whether only the Board has jurisdiction to take any actions outside the City limits but within the extraterritorial jurisdiction also does not have any relevance to the City's motion that is pending before the Court. The motion that is before the Court is the City's motion; and the issue that the motion raises is -2- whether there was substantial evidence for the jury to find in favor of Appellants based on the instructions they were given. With respect to the proposed instruction "Failure to Follow Own Procedures," the Court modified the instruction because the instruction submitted by Appellants does not contain a correct statement of the law. While Appellants' counsel has stated repeatedly throughout the course of this litigation, both to the Court and to the jury, that the City is required to follow its own procedures or its actions are void, Appellants have not offered any supporting authority for that statement. It is undersigned counsel's good faith belief, based on extensive research of both Arkansas statutes and cases, that there is not any supporting authority for that statement. Neither Rolling Pines Ltd. Partnership v. City of Little Rock, 73 Ark. App. 97, 40 S.W.3d 828 (2001), nor City of Lowell v. M & NMobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996), cited by Appellants in their proposed instruction and their brief, have anything to do with whether or not a city has followed its own procedures. That was not even an issue in either of those cases. The correct statement of the law is what the jury was instructed: that the Appellants had the burden of proving by a preponderance of the evidence that the City failed to substantially comply with its ordinances. See, e.g., City of Fordyce v. Vaughn, 300 Ark. 554, 781 S.W.3d 6 (1989), Mings v. City of Fort Smith, 288 Ark. 42, 701 S.W.2d 705 (1986), Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). In addition, whether or not the Court gave the instruction "Failure to Follow Own Procedures" submitted by Appellants has absolutely no relevance to the issues raised by the City's motion. Appellants apparently take issue with the City citing Mings in its original brief. Appellants' argument is misplaced. During the instruction conference when the jury instructions were finalized, the Court determined that it was appropriate to instruct the jury that the - 3 - Appellants have the burden of proving that the City failed to substantially comply with its ordinances. Mings simply discusses what substantial compliance is. The issue before the Court is not whether the jury was instructed correctly; it is not whether the approval of the preliminary plat and subdivision was administrative or legislative; it is not whether or not the approval of the preliminary plat was presented to the City's Board of Directors. The issue before the Court for purposes of the City's JNOV motion is whether there was substantial evidence, based on the instructions given to the jury, for the jury to find that the City failed to substantially comply with its own ordinances in approving the preliminary plat and subdivision. Appellants seem to argue that the jury could have somehow found in their favor based on Ark. Code Ann. § 14-56-413(a)(1)(A), which provides: "The territorial jurisdiction of the legislative body of the city having a planning commission, for the purpose of this subchapter, shall be exclusive and shall include all land lying with five (5) miles of the corporate limits." To state the obvious, Ark. Code Ann. § 14-56-413 is not a City ordinance, and the jury . was instructed that Appellants had the burden of proving that the City failed to substantially comply with its ordinances. As the Court informed Appellants' counsel at the conclusion of the trial, it was not appropriate to instruct the jury on that issue because it is a purely legal issue that should have been raised by motion prior to trial. The parties . are before the Court on the City's motion. Appellants' references to Ark. Code Ann. § 14-56-413 are not relevant to the City's motion, and the Appellants have not made any motions seeking a determination that the Planning Commission did not have the authority to make administrative decisions outside the City limits but within the extraterritorial jurisdiction. In inserting this argument into their response to the City's Motion for Judgment Notwithstanding the Verdict, the Appellants appear to be attempting to come through the "back door" to raise an issue that should have been made by motion prior to trial. Nothing related to Ark. Code Ann. § 14-56-413 has any bearing on the pending motion before the Court. However, because Appellants continue to assert this argument, the City feels that it is necessary, in an abundance of caution, to address the issue raised by Appellants in a substantive manner. In doing so, the City does not waive its position that this issue is not relevant to the City's JNCV motion. It seems to be Appellants' argument that if property is located outside the City limits, pursuant to Ark. Code Ann. § 14-56-413(a)(1)(A), only the City Board of Directors may administer any land use regulations and that the City's Planning Commission is without authority to do so. Appellants' reading of the statute is not accurate. Appellants have pulled one sentence out of an entire subchapter devoted to municipal planning and are attempting to apply that sentence out of context. Ark. Code Ann. § 14-56-401 — 14-56-426 gives cities the authority to engage in municipal planning and sets out the framework within which those plans are adopted and administered. The subchapter authorizes the legislative body of the municipality to create a planning commission and to "confer on the commission the powers necessary to carry out the municipal plan." Ark. Code Ann, § 14-56-404 (emphasis added). The subchapter states that one i of the purposes of the planning commission is to prepare and administer planning regulations. Ark. Code Ann. § 14-56-411. Ark. Code Ann. § 14-56-413 designates the territorial jurisdiction i 1 of the legislative body with a planning commission for the purposes of the subchapter. Ark. Code Ann. § 14-56-413(b)(1) gives the planning commission the authority to designate the area within the territorial jurisdiction for which it will prepare plans, ordinances, and regulations. After the area is designated and a planning area map completed, the commission may prepare -5- and adopt a Land Use Plan, Community Facilities Plan, Master Street Plan and other plans that are significant to the health, safety and general welfare of the city and its environs. Ark. Code Ann. § 14-56-414. The plans are then transmitted by the planning commission to the legislative body for enactment, recommended ordinances and regulations to carry out the plan. Ark. Code Ann. § 14-56-415. After a master street plan has been adopted, the planning commission may prepare and "shall administer" regulations controlling the development of land, including the subdivision of land. Ark. Code Ann. § 14-56-417. The genesis of Ark. Code Ann. § 14-56-401 —14-56-426 is Act 186 of 1957, with various amendments throughout the years. "The basic rule of statutory construction is to give effect to the intent of the legislature, making use of common sense." Brewer v. Ark. Dep't of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196, 200 (2001). "In determining the intent of the legislature, this court must look at the whole act and, as far as practicable, give effect to every part, reconciling provisions to make them consistent, harmonious, and sensible." Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 69 Ark. App. 323, 333 13 S.W.3d 197, 203 (2000). In looking at the whole act, common sense and the plain language of the subchapter dictate against a conclusion that the legislature intended for a planning commission to be permitted to administer regulations controlling the development of land within the city limits, but not when the property in question is outside the city limits but within the extraterritorial jurisdiction. That is not what Ark. Code Ann. § 14-56-413 says and such an interpretation is clearly not in line with the intent of the legislature when the entire subchapter is read as a whole. Appellants state that Mr. Bozynski "had trouble explaining why certain submissions and procedural requirements on the preliminary plat check list were not completed, or simply circled without explanation" and states that this is evidence that normal procedural requirements were not complied with. This statement does not address the substance of the City's motion. Appellants' burden was to prove that the City failed to substantially comply with its own ordinances. Mr. Bozynski testimony regarding the checklist does not constitute substantial evidence from which the jury could have found the City did not comply with its ordinances and Appellants do not even attempt to explain how this testimony could support such a finding. Appellants also list documentary evidence that was presented to the jury, again without explanation of how this evidence could support a finding of non-compliance by the City with its ordinances. The City will address each of the exhibits identified by Appellants in their response: (1) Plaintiffs' Exhibit 1 — The City acknowledges that the minutes of the proceedings regarding both the revised conditional use permit and the preliminary plat were introduced into evidence. Plaintiff offers no explanation of what may be contained in these minutes that would support a finding that the City failed to comply with its ordinances. In fact, there is nothing contained within these minutes from which the jury could have found that the City failed to comply with its ordinances. (2). Plaintiffs Exhibit 2 — The issue of the Bill of Assurance has been addressed in the City's original brief and will not be repeated here except to say that there is not substantial evidence from which the jury could find that the City failed to comply with its ordinance that requires submission of a draft bill of assurance. The evidence before the Court only supports a conclusion that the applicant submitted a draft bill of assurance. With respect to the affidavits of the property owners, the Court granted summary judgment to the City on the issue of whether the owners of the property authorized Entergy to act on their behalf. (3) Plaintiffs Exhibit 3 — The issues of the bill of assurance and the affidavits of the property owners have been completely addressed by the City. -7- (4) Plaintiffs Exhibit 6 — Mr. Bozynski testified at trial that deferral of street improvements requirements must be accomplished by ordinance because it is an amendment of the Master Street Plan. An ordinance was passed. There is nothing contained within Plaintiffs Exhibit 6 from which the jury could find that the City failed to comply with its own ordinances. (5) Plaintiffs Exhibit 4 — This exhibit deals with the refusal of the Board of Directors to rescind the approval of the Revised Conditional Use Permit. The verdict of the jury in favor of the City and Entergy is not the subject of a motion pending before the Court. As clearly set out in the City's Motion for Judgment Notwithstanding the Verdict, the motion requests JNOV only with respect to the verdict in favor of the Appellants on their appeal of the City's approval of the preliminary plat and subdivision. (6) Plaintiff s Exhibit 5 — Because Appellants only make a general statement, the City can only speculate as to what Appellants mean when they state that this exhibit reflects inconsistencies in Entergy's efforts on behalf of the property owners. Appellants fail to identify any specific thing contained within this exhibit from which the jury could find that the City did not comply with its ordinances. In fact, there is also nothing contained within this exhibit from which the jury could have made such a finding. When all the evidence is viewed in the light most favorable to Appellants, there was still no substantial evidence from which the jury could have concluded that the City failed to follow its ordinances in approving the preliminary plat and subdivision application. Fair-minded persons could not have drawn the conclusion reached by the jury. Appellants make a totally unsupported statement that the jury was presented with conflicted testimony and the jury could decide who was telling the truth; and that it appears the jury believed the Appellants and their witnesses over the witness of the City and Entergy. The City must point out that Appellants offer not one example of any conflicting testimony, much less how that testimony, whatever it might be, could support a finding that the City failed to substantially comply with its ordinances. As set forth completely in its original brief, the City has gone through the testimony and other evidence that could even remotely be considered to be related to the issue of whether the City followed its own ordinances or not. In doing so, the City established that there was no substantial evidence from which the jury could find in favor of the Appellants on the issue of the preliminary plat and subdivision by applying the law as instructed by the Court. Appellants in their response have not identified one word of testimony or one piece of documentary evidence from which the jury could find noncompliance. Appellants have done nothing but make generalized statements, not pointed to any real evidence that was presented to the jury. To the extent that Appellants are requesting judgment notwithstanding the verdict regarding the verdict in favor of the City and Entergy on the basis of Ark. Code Ann. § 14-56- 413, Appellants have failed to comply with Ark. R. Civ. P. 50, which requires that a motion for directed verdict must be made at the close of all the evidence. The City does not recall Appellants moving for directed verdict on that basis at the close of all the evidence. Even if the City is incorrect and a directed verdict motion was made at the close of all the evidence, Appellants have failed to comply with Ark. R. Civ. P. -50(b)(1), which provides that motion for judgment notwithstanding the verdict shall be made within ten days of entry of judgment. Inserting a sentence asking for relief at the end of a response brief does not constitute a motion. The City has established that it is entitled to judgment notwithstanding the verdict on the appeal of the approval of the preliminary plat and subdivision. The City respectfully requests that its motion be granted and that the Court enter judgment in favor of the City and Entergy on the appeal of the preliminary plat and subdivision approval. Respectfully Submitted: Thomas M. Carpenter City Attorney By: OL Amy Beckm 89058) Deputy City Attorney City Hall - Suite 310 500 West Markham Little Rock, AR 72201 (501) 371-4527 ------C-ERTLFIC-A-T-E-OF SERV -IC- - - - - - - - ---- I hereby certify that a copy of the foregoing pleading has been served upon G. Randolph "Randy" Satterfield, Satterfield Law Firm, PLC, P.O. Box 1010, Little Rock, Arkansas, 72203, and Webster Darling, Entergy Services, Inc., P.O. Box 551, Little Rock, Arkansas, 72203-0551, by. e-mail and by placing the same in the U.S. Mail, postage prepaid, this��d-rof October, 2009_ Amy Beckm)7eTcds -10- VL'1'1\�I.+ lll' 1L1L' VL1 l l'11 1V1X1NL' 1 500 West Markham, Ste. 310 Little Rock, Arkansas 72201 Amy Beckman Fields Deputy City Attorney September 23, 2009 VIA HAND DELIVERY Honorable Ellen Brantley Pulaski County Circuit Court, 16th Division 401 W. Markham, Suite 310 Little Rock, AR 72201 Telephone (501) 371.4527 - - ---- T-elecopier-(501) 37-1=4675— - Re: Tammy McLain v, City of Little Rock Planning Commission Pulaski County Circuit Court No. CV -2008-6428 Dear Judge Brantley: Please find enclosed a file -marked copy of the City's motion for judgment notwithstanding the verdict and brief in support, which have been filed this date. After the time to respond has expired, the City would request a brief hearing on its motion. Thank you for your consideration. Sincerely, Amy 13eckn an Melds Deputy City Attorney ABF:dab Enclosure cc/enc: Randy Satterfield (via email and U.S. mail) Web Darling (via email and U.S. mail) Tony Bozynski IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS 16TH DIVISION TAMMY McLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, MARILYNN M. BAEYENS, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 CITY OF LITTLE ROCK PLANNING COMMISSION ENTERGY ARKANSAS, INC. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT FILED (]9r' 4 10: 17.30 Pat O'Brien Pulaski Circuit Clerk 1 R 1 DV APPELLANTS APPELLEE INTERVENOR Comes Appellee, City of Little Rock ("City"), by and through its attorneys, Thomas M. Carpenter, City Attorney, and Amy Beckman Fields, Deputy City Attorney, and for its Motion for Judgment Notwithstanding the Verdict, states: 1. Appellants appealed the City's approval of a preliminary plat and subdivision application and the City's approval of a revised conditional use permit allowing Intervenor Entergy Arkansas, Inc. ("Entergy") to construct an electrical substation on property located at 14250 Colonel Glenn, Little Rock, Arkansas. 2. On August 18 to August 20, 2009, this case was tried to a jury. At the conclusion of the Appellants' case, the City moved for a directed verdict on the issue of the approval of the preliminary plat and subdivision. The City renewed its motion at the conclusion of the City's case, as well as at the close of all the evidence. The Court denied the City's motion for directed verdict. 3. After due deliberation, the jury returned two verdicts. With respect to the approval of the revised conditional use permit, the jury found in favor of the City and Entergy. With respect to the appeal of the approval of the preliminary plat and subdivision, the jury found in favor of Appellants. 2009. 4. A judgment was entered in accordance with the jury's verdict on September 22, 5. This motion addresses only the verdict in favor of the Appellants on the appeal of the approval of the preliminary plat and subdivision application and that portion of the judgment in favor of Appellants on the appeal of the approval the preliminary plat and subdivision. 6. Pursuant to Ark. R. Civ. P. 50(b), the City moves that the verdict and judgment in favor of Appellants on the appeal of the approval of the preliminary plat and subdivision be set aside and that judgment be entered in accordance with the City's motion for directed verdict. 7. There is no substantial evidence to support the jury's verdict in favor of Appellants on their appeal of the City's approval of the preliminary plat and subdivision application and the City and Entergy are entitled to judgment as a matter of law on the appeal of the approval of the preliminary plat and subdivision application. 8. The City's memorandum brief accompanies this motion. WHEREFORE, Appellee, City of Little Rock, prays that its Motion for Judgment Notwithstanding the Verdict be granted; that judgment be entered in favor of Appellee and Intervenor on the Appellants' appeal of the City's approval of the preliminary plat and subdivision application; and for all other just and proper relief to which the City may be entitled. -2- Thomas M. Carpenter City Attorney C By: Arny Bcckt •iclds (89058) Deputy City Attorney City Hall — Suite 31 0 500 West Markham Little Rock, AR 72201 (501) 371-4527 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been served upon G. Randolph "Randy" Satterfield, Satterfield Law Firnr, PLC, P.O. Box 1010, Little Rock, Arkansas, 72203, and Webster Darling, Entergy Services, Inc., P.O. Box 551 Little Rock, Arkansas, 72203-0551, by placing; the same in the U.S. Mail, postale prepaid, this y cif September, 2009. Ainy Beckma ields -3- TAMMY McLAIN, FAITHANN GLIDDEN, MICHAEL L. GLIDDEN, GARY W. BROWN, DIANE DAVIS, TRUDY CAMPBELL, MARILYNN M. BAEYENS, ROY R. JOLLEY, CAROLYN S. JOLLEY, SUE ANN STEPHENS and HOWARD STEPHENS Individually and as Trustees of THE HOWARD GRANTLAND STEPHENS AND SUE ANN STEPHENS JOINT REVOCABLE TRUST DECLARATION DATED THE 28TH DAY OF JULY, 1997 VS. CASE NO. CV -2008-6428 CITY OF LITTLE ROCK PLANNING COMMISSION ENTERGY ARKANSAS, INC. FILED 09/2'31'09iii, i:'2 Fat O'Brien PiAlask:i l=ira cit CIP-0, CR3 E,j BRIEF IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT Introduction and Factual Background APPELLANTS APPELLEE INTERVENOR This case involves an appeal pursuant to Ark. Code Ann. § 14-56-425 of two separate but related administrative actions taken by the City of Little Rock ("City"). Members of the Minton family own property located at 14250 Colonel Glenn Road. The property is outside the City limits, but is within the City's extraterritorial planning jurisdiction. The Mintons authorized Entergy Arkansas, Inc. ("Entergy") to make two applications to the City of Little Rock Planning Commission on their behalf. The ultimate purpose of the applications was to permit Entergy to construct and operate an electrical substation on part of the property at issue in this case. Entergy, on behalf of the owners, applied for approval of a preliminary plat, which would permit subdivision of the subject property into three lots. In connection with the application for approval of the preliminary plat, Entergy sought two variances of the City's ordinances; (1) the requirement of a certain depth to width ratio for lots within a subdivision, and (2) the requirement that all lots within a subdivision have public street frontage. Entergy also sought a deferral for construction of street improvements required by the City's boundary street ordinance. The second application was for a revised conditional use permit to allow Entergy to construct and operate an electrical substation on Lot 3 of the subdivision. Both applications were approved by the City. Neighboring property owners opposed both the application for approval of the preliminary plat and subdivision and the application for a revised conditional use permit. The neighboring property owners, who are the Appellants in this case, brought this action appealing the approval of the preliminary plat and subdivision and the approval of the revised conditional use permit. This case was tried to a jury from August 18 to August 20, 2009. At the conclusion of the Appellants' case, the City moved for a directed verdict as to the issue of the preliminary plat and subdivision on the basis that there was no evidence from which the jury could find that the City failed to substantially comply with its own ordinances in approving the preliminary plat and subdivision. The City again moved for directed verdict on the same basis after the City, rested and at the close of all the evidence. The Court denied the City's motion for directed verdict. At the conclusion of the trial, Appellants' appeals of the two approvals were submitted to the jury. There were two instructions given to the jury that related to the preliminary plat and subdivision. The jury was instructed that "the plaintiffs [appellants] have the burden of proving, by the preponderance (sic) of the evidence the following matters: 1. That the City of Little Rock failed to substantially comply with its ordinances in approving the preliminary plat for the subdivision..." The other instruction that related to the preliminary plat and subdivision stated, "The City of Little Rock has granted a subdivision application and preliminary plat submitted by -2- Intervenor, Entergy Arkansas, Inc. The Plaintiffs have appealed the approval of the subdivision application and preliminary plat. It is your duty to determine hwether (sic) the subdivision application and preliminary plat should have been approved. If you find from the evidence in this case that Plaintiffs have proved by a preponderance of the evidence their claim that the preliminary plat and subdivision application should not have been approved, then your verdict should be for the Plaintiffs on that issue; but if, on the other hand, you find from the evidence that this proposition has not been proved, then your verdit (sic) should be for the City of Little Rock and Entergy Arkansas, Inc. on that issue." The jury was given two separate verdict forms, one with respect to the preliminary plat and subdivision, and one with respect to the revised conditional use permit. After deliberating, the jury returned a verdict in favor of the City and Entergy on the appeal of the revised conditional use permit. The jury returned a verdict in favor of the Appellants on the appeal of the preliminary plat and subdivision approval. There is no substantial evidence to support the jury's verdict in favor of Appellants on their appeal of the City's approval of the preliminary plat and subdivision application. The City and Entergy are entitled to judgment on the appeal of the approval of the preliminary plat and subdivision application as a matter of law. Areument "A motion for judgment notwithstanding the verdict is technically only a renewal of the motion for directed verdict made at the close of the evidence..." Advanced Environmental Recycling Technologies, Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 295, 275 S.W.3d 162, 170 (2008). A trial court may enter a judgment notwithstanding the verdict (JNOV) "if there is no substantial evidence to support the jury verdict, and the moving party is -3- entitled to judgment as a matter of law." Aon Risk Services v. Mickles, 96 Ark, App. 369, 375, 242 S.W.3d 286, 291 (2006). "Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other." Advanced Environmental Recycling Technologies, 372 Ark. at 297, 275 S.W.3d at 171. A city's actions are not invalid when the city has substantially complied with the procedures set forth in its own ordinances. Mings v. City of Fort Smith, 288 Ark. 42, 46, 701 S.W.2d 705, 707 (1986). The Arkansas Supreme Court has addressed a city's obligation to substantially comply with its own ordinances, holding that "[a] city is required to comply with the mandatory procedural rules of its own municipal ordinances." Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 573, 647 S.W.2d 458, 459 (1983). The Court went on to state that "those things which are of the essence of the thing to be done are mandatory, while those not of the essence of the thing to be done are directory only." Id., 378 Ark. at 574, 647 S.W.2d at 460. The jury in this case was instructed with respect to the preliminary plat and subdivision that the Appellants had the burden of proving that the City of Little Rock failed to substantially comply with its ordinances in approving the preliminary plat for the subdivision. During the course of the trial in this case, Appellants attempted to show that the City failed to substantially comply with its ordinances in approving the preliminary plat and subdivision. There was no substantial evidence presented to the jury from which the jury could find that Appellants met their burden of proving that the City failed to substantially comply with its own ordinances in approving the preliminary plat and subdivision and the City and Entergy are entitled to judgment as a matter of law. -4- plat or subdivision must be made by the property owners or the owners' authorized agent. During the trial, the Court granted the motion for partial summary judgment filed by the City prior to the trial, finding that the property owners (the Mintons) had authorized Entergy to act as their authorized agent for the purpose of the application for approval of the preliminary plat and subdivision. The Court additionally granted the City's motion for partial summary judgment with respect to the boundary lines of the property, finding that the property depicted on the preliminary plat conforms to the boundaries of the subject property as established in a previous quiet title action involving the property. Appellants presented evidence that the City's ordinances require submission of a draft bill of assurance with the preliminary plat and subdivision application. A draft bill of assurance, submitted by Entergy, was admitted into evidence in this case. Appellants introduced and the Court admitted into evidence a certified copy of the proceedings before the City related to the preliminary plat and subdivision. The draft bill of assurance submitted by Entergy is contained within that exhibit. Later, during jury deliberations, the jury asked to see a copy of Little Rock Code § 31-93. A copy of that code section was provided to the jury. Little Rock Code § 31-93 is entitled "Bill of assurance" and provides; "The draft submitted shall use the format provided within the sample draft provided by staff. This format will ensure that the proposed bill of assurance separates those provisions required in the plat by ordinance and those provisions desired by the developer." No reasonable juror could conclude that the draft bill of assurance submitted by Entergy was not the same as the sample draft provided by staff and referred to in Little Rock Code § 31- 93. It is clear from the formatting that Entergy used the sample format provided by staff — the -5- header on the document is the same as all other City documents contained within the subdivision file. Each and every substantive provision regarding the covenants and restrictions to be contained in an eventual final Bill of Assurance are contained within the draft bill of assurance submitted with the application. Tony Bozynski, Director of Planning and Development for the City of Little Rock, testified that bills of assurance are not finalized until approval of the final plat. The draft bill of assurance submitted by Entergy accomplished the purpose of the ordinance: it included the provisions required by the City, as set forth in the draft form prepared by City staff and submitted by Entergy, and established that there were no other provisions that the developer wished to include in the bill of assurance that would ultimately be filed upon approval of the final plat. There is no substantial evidence by which the jury could find that the City failed to substantially comply with its ordinance requirements with respect to the bill of assurance. As an initial matter, the requirement of submitting a draft bill of assurance is not "of the essence of the thing to be done" in connection with applying for approval of a preliminary plat and is therefore not mandatory. Even if the Court determines that submitting a draft bill of assurance is mandatory, the draft bill of assurance that is required to be submitted with the preliminary plat was in fact submitted by Entergy. The City substantially complied with its own ordinances in accepting the draft bill of assurance and there is no substantial evidence from which the jury could reasonably conclude that the City did not. Appellants introduced evidence that, pursuant to the City's ordinances, an applicant may only request two deferrals of consideration by the Planning Commission of an application for approval of preliminary plat and subdivision. It was established through Mr. Bozynski's testimony and undisputed that there were no deferrals requested with respect to the preliminary plat and subdivision application at issue in this case. Appellants introduced evidence that the City generally requires lots within subdivisions to have public street frontage. However, Mr. Bozynski testified that, while this is the general rule, the City's ordinances also provide that an applicant may request a variance from this requirement. Mr. Bozynski testified that Entergy requested a variance of the public street frontage requirement and that the Planning Commission approved the variance, as allowed by ordinance. Mr. Bozynski additionally testified that the Planning Commission approved a variance of lot width to depth ratio and that this variance was allowed and approved in compliance with the City's ordinances. There was absolutely no evidence with regard to the variances from which the jury could find that the City failed to substantially comply with its own ordinances in approving the requested variances. Evidence was introduced during the trial that the City's boundary street ordinance generally requires a developer who subdivides property to construct street improvements, However, Mr. Bozynski testified that the City's ordinances provide a mechanism by which an applicant can request a deferral. Such a deferral was requested in this case. The Planning Commission recommended approval of the deferral, and the Board of Directors passed an ordinance amending the City's Master Street Plan to defer construction of the street improvements for five years, or until development of adjacent property, whichever comes first. Again, Mr. Bozynski testified that this deferral was accomplished in compliance with the procedures set out in the City's ordinances and Appellants introduced no evidence to the contrary. -7- There was testimony during the trial that the approval of the preliminary plat and subdivision approval was never submitted to the Board of Directors. Mr. Bozynski testified that, pursuant to the City's ordinances, a preliminary plat and subdivision approval are final at the Planning Commission level and are appealable directly to Circuit Court. Mr. Bozynski also testified that variances that are granted as part of the preliminary plat and subdivision approval process are final at the Planning Commission level unless they are appealed to the Board of Directors. However, he testified that the Appellants in this case did not appeal the variances to the Board of Directors. The preliminary plat and subdivision were not presented to the Board of Directors because the ordinances governing the procedures for approval of preliminary plats and subdivisions do not provide for submitting these approvals to the Board. There was no evidence before the Court from which the jury could find that failure to present the preliminary plat and subdivision to the Board constitutes noncompliance with the City's ordinances. Pursuant to the instructions given to the jury, in order to prevail on their appeal of the approval of the preliminary plat and subdivision, Appellants were required to prove by a preponderance of the evidence that the City failed to substantially comply with its own ordinances. There not only was an absence of substantial evidence from which the jury could have concluded that the City failed to substantially comply with its own ordinances in approving the preliminary plat and subdivision, there was a complete absence of any evidence from which the jury could have reached such a finding. There is nothing in the record that supports a finding that the City failed in any way to comply with its own ordinances. Appellants had the burden of proof on this issue. Appellants failed to meet their burden and the City is accordingly entitled to judgment as a matter of law on the appeal of the approval of the preliminary plat and subdivision. the Court enter judgment notwithstanding the verdict on Appellants' appeal or the ulty s approval of the preliminary plat and subdivision application at issue in this case. Respectfully Submitted: Thomas M. Carpenter City Attorney By: Amy Beckm ields (89058) Deputy City Attorney City Hall — Suite 310 500 West Markham Little Rock, AR 72201 (501) 371-4527 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been served upon G. Randolph "Randy" Satterfield, Satterfield Law Firm, PLC, P.O. Box'1010, Little Rock, Arkansas, 72203, and Webster Darling, Entergy Services, Inc., P.O. Box 551, Little Rock, Arkansas, 72203-0551, via e-mail and by placing the same in the U.S. Mail, postage prepaid, lhis 9,3L` day or September, 2009. Amy Be:ckiin "fields Y Page 1 of 1 Carney, Dana From: Bozynski, Tony Sent: Tuesday, September 22, 2009 10:54 PM To: Carney, Dana Subject: Fw: McLain FYI. Sent from my BlackBerry From: Fields, Amy To: Randy Satterfield (satterfieldlaw@comcast.net) < satterfieldlaw@comcast. net>; Web Darling (wdarlin@entergy.com) <wdarlin@entergy.com> Cc: Bozynski, Tony Sent: Tue Sep 22 13:49:33 2009 Subject: McLain Randy & Web: The judgment and order on partial summary judgment were entered by the Court today. I had asked Rosie to call me when Judge Brantley signed the judgment - She called late yesterday afternoon and our runner went today and picked it up. I wanted to go ahead and get this to you by email, and I'll get a hard copy to you in the mail today. If you have any questions, please let me know. Amy Amy Beckman Fields Deputy City Attorney (501) 371-6892 9/23/2009 Carney, Dana From: Carney, Dana Sent: Tuesday, March 22, 2016 10:39 AM To: 'garyb1995@aol.com' Cc: Jones, James E. Subject: FW: 3111 ENTERGY LAWSON RD SUBSTATION / 14121 LAWSON RD Attachments: AGREEMENT LETTER.pdf From: Jason Lowder [mailto:Jason.Lowder@carkw.com] Sent: Tuesday, March 22, 2016 10:34 AM To: jellill@entergy.com; Carney, Dana <DCarney@littlerock.org> Cc: Jim Ferguson <Jim.Ferguson @carkw.com> Subject: 3111 ENTERGY LAWSON RD SUBSTATION / 14121 LAWSON RD Attached is the revised Agreement Letter for the proposed Fire Hydrant. Let me know if you have any questions. Thank You Jason Lowder, Engineering Technician i ason.l owd a r@ca rkw.co m 501-377-1245 x iaa` T ter. LywA. rIADoMK m Central ArkansasWater Essential &- Exceptional March 22, 2016 Entergy Inc. Attn: John Ellis 5115 Thibault Rd. Little Rock, AR 72206 COST OF: INSTALLATION OF FIRE HYDRANT ENTERGY LAWSON RD SUBSTATION -14121 LAWSON RD CAW PROJECT NO. 3111 The cost of relocation of existing facilities is indicated as follows: 1- Standard fire hydrant installation @ $4,621.00/each $ 4,621.00 In®13 carkw.com Central Arkansas Water cannot begin work until a check has been received for this work The cost of restoration of pavement and landscaping are not included in this price. We will try to comply with the preferred construction time for this project, but the time may need to be adjusted to accommodate emergencies and previously planned work by Central Arkansas Water crews. It is our understanding that the local Fire Department will determine the exact location of the Fire Hydrant. Please advise when this location is determined. The above price is based upon prevailing prices for labor and material and can be considered firm for ninety (90) days from the date shown above. If conditions change before the Applicant pays the cost of installation, the amount may vary. CENTRAL ARK NS,�S WATER J"Jan Lowder Engineering Technician dt/s An Equal Opportunity Employer Commiftaki to Diversity 221 East Capitol Avenue a P.O. ®ox 1789 o Little Rocca. AR 72203 - 501.372.5181 Carney, Dana From: Gary Boyle <garyb1995@aol.com> Sent: Tuesday, March 22, 2016 11:29 AM To: Jones, James E.;jellill@entergy.com Cc: Jason.Lowder@carkw.com; Carney, Dana Subject: Re: 3111 ENTERGY LAWSON RD SUBSTATION / 14121 LAWSON RD Attachments: entergy hydrant 1.pdf; entergy hydrant 2.pdf; entergy hydrant 3.pdf, Hydrant a -f 14115 Lawson Rd.pdf Attached are copies of the previous paperwork and a map of the area where it was agreed to locate the hydrant. My cell number is 501-425-3975 should you need to contact me. Thanks to everyone for getting this moving again. Gary M Boyle Crystal FD -----Original Message ----- From: Jones, James E. <j ejones@ little rock. org > To: Ellis III, John <jelli11 @entergy.com> Cc: Jason.Lowder <Jason.Lowder@carkw.com>; garyb1995 <garyb1995@aol.com>; Carney, Dana <DCarney@littlerock.org> Sent: Tue, Mar 22, 2016 11:05 am Subject: FW: 3111 ENTERGY LAWSON RD SUBSTATION / 14121 LAWSON RD John, Attached is a revised cost agreement from CAW for installation of Fire Hydrant on Lawson Road. Note there is an exclusion for landscaping and/or pavement work. Blease visit with Gary Boyle of Crystal FPD (455-9921) regarding location placement, have payment processed, and provide an estimated timeline of installation. Thanks for getting; involved and helping get this resolved. It is appreciated. James From: Jason Lowder[ma ilto:jason.Lowder carkw.comj Sent: Tuesday, March 22, 2016 10:39 AM To: Jones, James E. <ielanes@littlerock.org> Subject: FW: 3111 ENTERGY LAWSON RD SUBSTATION / 14121 LAWSON RD From: Jason Lowder Sent: Tuesday, March 22, 2016 10:34 AM To: 'jeliill@entergy.com'; 'DCarne littlerock.or ' Cc: Jim Ferguson Subject: 3111 ENTERGY LAWSON RD SUBSTATION / 14121 LAWSON RD Attached is the revised Agreement Letter for the proposed Fire Hydrant. Let me know if you have any questions. Thank You Jason Lowder, Engineering Technician i ason.lowder@carkw.com 501-377-1245 �`^Fl ater Lssr� rl=fiaxptivv Outlook.com Print Message Date: Thu, 4 Apr 2013 14:33:37 -0500 Chad, I have attached two maps. One is an aerial view of the area and one is a topographic view which allows for a clear count of buildings, etc We would like to submit this applicaeioof the arrangements by Entergy to fund the placem en of a fire n tomorrow and were hoping to receive an ernall or fax to the effect that Crystal Fire Department approv s hydrant in this area. Regards, Tom Tom Fox FTN Associates office: 501.225.7779 Cell: 501.350.9958 tmf@ftn-assoc.com 3 Innwood Circle Suite 220 Little Rock, AR 72211 https://snt l 5 o.mail.live.com/ol/mail.mvc/PrintMessages?mkt=en-us 3/21/2016 Outlook.com Print Message rage >, or L Closc .l a)nlr. RE: Map of Lawson Substation vicinity From: chad.forshee@botmail.com on behalf of Chad Forsbee (eforshee@crystalfire.org) Sent: Thu 4/04/13 3:52 PM To. Tom Fox (tmf@ftn-assoc.com) Cc: Craig Shackelford (cshacke1506@yahoo.com); Steve White (s.d.white@wildblue.net) Bec: Gary Boyle (garybl995@aol.com) 2 attachments H,Arant a -f 14115 Lawson Rd.pdf (3.0 MB) . CFD Letter 14115 Lawson Rd.pdf (26.5 KB) Tom, Please note the attached letter and map. Contact me with any questions or concerns. Thanks, Chad R. Forshee Chief of the Department Crystal Fire Protection District #24 17325 Lawson Road Little Rock, Arkansas 72210 501.821.7099 - Station 1 501.350.1576 - Mobile wwvd.crvstalfire.or Like Us on Facebook: www.iaoebook.coln/C stalfirede t Follow Us on Twitter: Oww_t itte-co c ,staifiredept From: tmf@ftn-assoc.com To. eforshee@crystalfire.org Subject: Map of Lawson Substation vicinity https:Hsntl 50.mail.live.com/ol/mail.mvc/printMessages?mkt=en-us 3/21/2016 17325 LAWSON ROAD LymE ROCK, AR 72210 PnoNE - 501.821.7099 FACSHVME - 501.821.0155 STEVEN D. WHITE, ASSISTANT CHIEF CHAD R FORSHEE, CHIEF OF THE DEPARTMENT April 4, 2013 FrN Associates Attn: Tom Fox #3 innwood Circle Suite 220 Little Rock, AR, 72211 Re: Entergy Substation Addition, Lawson Road, Little Rock, AR 72210 Dear Mr. Fox, This letter is a follow up to a letter disseminated between Mr. N. Wesley Hunt, Counsel, Entergy Services, Inc. and Chief Lachowsky, dated October 8, 2012 as well as our email correspondence. The letter addressed concerns of the addition of a fire hydrant along Lawson Road in the vicinity of a new substation being constructed by Entergy Services, Inc. Crystal Fire Department approves the arrangements by Entergy Services, Inc. and Central Arkansas Water (CAW) to fund the placement of a fire hydrant in the area of 14115 Lawson Road. Please find attached a map of the approximate location for the hydrant installation. The hydrant location is designated by a blue dot. For a more exact and agreed to location please have a representative(s) from CAW follow up with me at a later date. Please feel free in contacting me with any questions or concerns. 0120. Sincerely, Chad R. Forshee Chief of the Department Crystal Fire Protection District I can be reached at 501-350-1576 or 501-681-