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OPT, LLC v. City of Springdale

Court of Appeals of Arkansas, Division II

October 25, 2017

OPT, LLC APPELLANT
v.
CITY OF SPRINGDALE, ARKANSAS, AND DOUG SPROUSE, MAYOR APPELLEES

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-16-812] HONORABLE CRISTI BEAUMONT, JUDGE

          T. David Carruth, for appellant.

          Ernest B. Cate, City Attorney, for appellees.

          RITA W. GRUBER, Chief Judge

         OPT, LLC, appeals from the Washington County Circuit Court's dismissal of its complaint for lack of subject-matter jurisdiction. It argues that the circuit court failed to construe the complaint in the light most favorable to it and resolve all reasonable inferences in favor of the complaint. We hold that OPT, LLC, has pleaded sufficient facts to show that the Washington County Circuit Court has subject-matter jurisdiction over the complaint and, therefore, that the court abused its discretion in dismissing it.[1]

         I. Complaint

         Appellee, the City of Springdale, enacted various ordinances dealing with the cleanup of real property within its city limits. Appellant, OPT, LLC, owns real property within the city limits that it and its predecessor had leased for use as a salvage yard for over thirty years. According to the complaint, this lease terminated in August 2012, and appellant immediately obtained a Phase I environmental site assessment of the property. The assessment found that the property was contaminated and recommended that a Phase II assessment be conducted to determine the extent of contamination.

         In May 2013, appellee informed appellant that its property was the subject of numerous code violations; if appellant did not remedy the violations, appellee would clean the property and charge appellant for the cost of clean-up; and if the charges were not paid, appellee would assert a lien on the property for the clean-up costs. Appellant alleges that it had notified appellee that the property was subject to environmental contamination, and clean-up could not be effected until a determination was made regarding the extent of the contamination. Appellant alleges that, notwithstanding having been placed on notice of this, appellee entered the property on March 10, 2014, and using heavy equipment, disturbed the contaminated soil. Appellant alleges that appellee entered onto its property on several occasions after March 10, 2014, "under the purported authority of city ordinances regarding 'Unsanitary and Unsightly Conditions' (see Article IV, Sections 42-76 thru 42-81)."[2] The complaint alleges that appellee exceeded what was necessary to abate any sightliness issues. The complaint also states that appellant "should have an offset and/or claim against defendant City of Springdale for any damage caused by said City of Springdale for any environmental problems it may have caused by its actions."

         The complaint contends that many of the code violations appellant allegedly violated concerned "aesthetics or sightliness issues" and "have no objective standard by which they can be evaluated." Appellant claims in the complaint that the relevant code provisions were "void for vagueness and are unenforceable" and that any lien or claim against its property by appellee "would have no basis and be void." Appellant further alleges that "the court should find the code sections cited by [appellee] to be void for vagueness as the same do not contain objective criteria to determine a violation; that the Court should find that the expenses incurred by the City of Springdale on or about March 10, 2014, and subsequently were unnecessary and overly broad to cure the violations cited." The complaint alleges that appellee's actions after March 10, 2014, in coming onto appellant's property were unnecessary as appellant had continually kept the premises "mowed and in proper state, " that appellee's actions were based on "vague and wholly subjective language in its ordinances and are void actions, " and that the liens on the property to pay for these unnecessary actions constitute "a slander of [appellant's] title and damages its value."

         Appellant also asserts that Ark. Code Ann. § 14-55-202 (Repl. 1998) requires a city to read all bylaws and ordinances of a general and permanent nature on three different days-or waive this rule with a two-thirds council vote-before passage. Appellant alleges that appellee routinely adopts ordinances in violation of this statute and that "the ordinances and code provisions used by the City of Springdale to come upon [appellant's] property under the auspices of a right to clean up offending property and assert liens therefore, were not properly passed and/or were passed in violation of Arkansas law." Appellant requests that "any and all ordinances" found to have been passed in violation of this statute be "stricken from the municipal records of the City of Springdale."

         Appellant prays in its complaint for an injunction against appellee directing it not to assess or enforce a lien against its real property unless and until the court takes testimony and proof regarding the issues raised. Appellant also prays for an injunction holding that the ordinances and code provisions "relied upon by the City of Springdale were passed in violation of Arkansas law and, therefore, were and are void and unenforceable."

         In conclusion, the complaint requests the following of the circuit court:

That the Court rule the ordinances and codes cited by the City are void for vagueness; that the Court rule that the ordinances, rules, regulations and codes cited by the City of Springdale in taking action against [appellant] were not enacted in accordance with Arkansas law and, as such, the same are void and unenforceable; that the Court rule that the expenses incurred by the City of Springdale on or about March 10, 2014, and subsequent thereto, are unnecessary and excessive and direct that [appellant] pay only those which are reasonable . . . .

         II. Moti ...


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