FROM THE PULASKI COUNTY CIRCUIT COURT. NO. 60CV-13-1018.
HONORABLE W. MICHAEL REIF, JUDGE.
DANIELSON, Associate Justice.
Southwest Power Pool, Inc. (" SPP" ), appeals an
order of summary judgment entered in favor of appellee Kanis
and Denny Roads Suburban Water Improvement District No. 349
of Pulaski County (" the District" ). On appeal,
SPP argues that the Pulaski County Circuit Court erred in
granting summary judgment on SPP's challenge to the
reasonableness of an assessment of benefits and accompanying
levy of taxes. We reverse and remand.
District was formed in 2000 for the primary purpose of
constructing water lines and related improvements to serve
real properties within the District. The District was
financed by bond issues; in order to repay its debts and fund
general operations, the District assessed the benefits
accrued to each real property within the District resulting
from the construction of the water lines, and levied taxes
accordingly. The District completed construction of the water
lines in 2006. At that time, the District conveyed and
dedicated its easements and water lines to Central Arkansas
Water (" CAW" ), which has owned, operated, and
maintained the easements and water lines since that time.
2010, SPP purchased 24.04 acres of unimproved real property
lying within the District. SPP dedicated 3.2 acres to the
City of Little Rock and constructed its commercial facility
on the remaining 20.84 acres. This property had originally
been part of an 80-acre tract, which was initially assessed
in the amount of $138,078 in 2003. This assessment resulted
in an annual levy of approximately $3,500, which was paid
without protest from 2003 through 2012, and which SPP
conceded was fair. In 2013, the District reassessed
SPP's property, determining that the assessed benefits to
the 20.84 acres alone totaled $2,521,954. This assessment
resulted in an annual levy of $60,653.
appealed the 2013 reassessment to the District's board of
equalization, composed of its assessor and commissioners. The
reassessment was confirmed. SPP then filed its complaint in
circuit court, asserting that the reassessment was wrong as a
matter of law and as a matter of fact. Specifically, SPP
argued that an assessment was supposed to represent the
benefit to its property resulting from the District's
construction of water lines, which had been completed in
2006, and that the subsequent construction of its facility on
the property would not have changed that value. SPP also
alleged that it had chosen not to use the District's
water lines and instead connect to lines that had already
been constructed by the owner of the original 80-acre tract
and CAW. Thus, it contended, the presence of the
District's water lines near its property was of no
benefit to it, and the assessment should have been reduced to
zero. For the same reason, SPP argued that it was exempt from
assessment under Arkansas Code Annotated section
14-92-225(c)(2). SPP maintained that the reassessment
violated procedural and substantive due process and equal
protection and constituted a taking without just
compensation. Finally, SPP alleged that the District had
failed to follow statutory procedures for reassessment,
including those having to do with notice.
District answered and filed its motion for summary judgment.
The District disagreed with SPP's interpretation of
section 14-92-225(c)(2), arguing that it did not exempt SPP
from assessment and that it allowed the District to assess
property in proportion to the benefit conferred. The District
also argued that it had provided proper notice to SPP and
that the reassessment was reasonable. In response to the
motion for summary judgment, SPP submitted the affidavit of
Ray Owen, Jr., a licensed attorney and registered
professional engineer who had experience serving as an
assessor for over thirty improvement districts over a period
of more than four decades. Owen opined that the reassessment
of SPP's property was improper because there was little
to no benefit accruing to the property as a result of the
District's earlier construction of water lines.
Additionally, Owen questioned the assessor's
calculations, which apparently valued SPP's land and the
facility built upon it at $0.00 prior to the District's
construction of its water lines. Owen also referenced minutes
of the District's commissioners' meetings and emails
between the District's assessor and commissioners,
opining that the commissioners' input on the SPP
reassessment was inappropriate and questioning whether the
reassessment was independently made by the assessor as
required by statute.
further briefing and two hearings, the circuit court granted
the District's motion for summary judgment on all issues
except notice. The court found that a material
physical change in property after an original assessment is a
basis for reassessment and that all assessments and
reassessments are presumptively reasonable (citing
Sugarloaf Dev. Co., Inc. v. Heber Springs Sewer
Improvement Dist., 34 Ark.App. 28, 805 S.W.2d 88 (1991),
and Kelley Trust Co. v. Paving Improvement Dist.
No. 47 of Ft. Smith, 185 Ark. 397, 47 S.W.2d 569
(1932)). The court concluded that SPP's connection to a
CAW line did not exempt it from assessment under section
14-92-225(c)(2); rather, SPP's " alternative water
source is not supposed to be taken into consideration at
all." In addition, the court determined that the
reassessment was not void because of the communications
between the District's commissioners and its assessor.
SPP filed a motion for reconsideration, which was denied.
Following a bench trial on the issue of the sufficiency of
the 2013 notice of reassessment, the circuit court entered a
final order granting judgment in favor of the
District. SPP filed a timely notice of appeal.
appeal challenges the circuit court's entry of summary
judgment in favor of the District. The law is well settled
regarding the standard of review used by this court in
reviewing a grant of summary judgment. See, e.g.,
Anderson's Taekwondo Ctr. Camp Positive, Inc. v.
Landers Auto Group No.1, Inc., 2015 Ark. 268. A circuit
court will grant summary judgment only when it is apparent
that no genuine issues of material fact exist requiring
litigation and that the moving party is entitled to judgment
as a matter of law. See id. The burden of proof
shifts to the opposing party once the moving party
establishes a prima facie entitlement to summary judgment,
and the opposing party must demonstrate the existence of a
material issue of fact. See id. After reviewing the
undisputed facts, the circuit court should deny summary
judgment if, under the evidence, reasonable minds might reach
different conclusions from the same undisputed facts. See
appeal, this court determines if summary judgment was
appropriate based on whether the evidentiary items presented
by the moving party leave a material question of fact
unanswered. See id. This court views the evidence in
the light most favorable to the party against whom the motion
was filed, resolving all doubts and inferences against the
moving party. See id. This review is not limited to
the pleadings but also includes the affidavits and other
documents filed by the parties. See id.
raises four points on appeal: (1) that the circuit court
erred in granting summary judgment in favor of the District;
(2) that the District's commissioners improperly assumed
the role of the assessor, which violated statutory guarantees
and denied SPP due process; (3) that the amount of the
reassessment and the erroneous way in which it was determined
are very much in dispute and present issues for trial; and
(4) that any ambiguity in section 14-92-225(c)(2) is required
to be resolved in favor ...