Brock v. Townsell

• Decision Date: 23 April 2009
• Docket Number: No. 08-807.,08-807.
• Citation: 309 SW 3d 179
• Parties: Herman BROCK, Appellant, v. Tab TOWNSELL, Appellee.
• Court: Arkansas Supreme Court

309 SW 3d 179

2009 Ark. 224

Herman BROCK, Appellant, v. Tab TOWNSELL, Appellee.

No. 08-807.

Supreme Court of Arkansas.

April 23, 2009.

James F. Lane, for appellant.

Michael L. Murphy, Conway City Attorney and Kurt J. Meredith, Deputy City Attorney, for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellant Herman Brock appeals an order of the Faulkner County Circuit Court dismissing his complaint and granting summary judgment in favor of Appellee Tab Townsell, Mayor of the City of Conway, Arkansas. On appeal, Brock argues that the circuit court erred in finding, as a matter of law, that the land-use ordinances of the City, adopted pursuant to Arkansas Code Annotated sections 14-56-401-14-56-426 (Repl.1998 & Supp.2007), do not conflict with the statutory authority of the Arkansas Department of Health, pursuant to Arkansas Code Annotated section 20-17-903 (Repl.2005), to grant or deny permits for cemeteries. Brock also challenges the circuit court's finding that section 20-17-903 is subject to the properly adopted land-use ordinances of Arkansas cities. This appeal presents a significant issue needing clarification of the law and a substantial question of law concerning the interpretation of an act of the General Assembly. Therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(5) and (6) (2008). We find no error and affirm.

In September of 1994, the City of Conway adopted a zoning ordinance, Ordinance 0-94-54, that requires the issuance of a conditional-use permit in order for burial facilities, including cemeteries, to be located on property in an agricultural zoning district. On July 21, 2003, Brock, who resided in Conway on a piece of real property in an agricultural zoning district, applied to the Conway Planning Commission for a conditional-use permit so that he might establish a family cemetery on his property. Brock's first request was withdrawn, and his second request was unanimously denied by the Commission on October 20, 2003. Brock appealed to the Conway City Council, which voted 7-1 to deny his request on November 11, 2003. Brock did not appeal from this decision to the circuit court.

In the meantime, on July 30, 2003, Brock submitted the following handwritten request to Townsell: "I, Herman Brock, am making a request to the Mayor, Tab Townsell, of Conway, AR, for a family cemetery and to have it registered." On August 1, 2003, the Chief Engineer at the Arkansas Department of Health notified Townsell by letter that an engineer for the Department had inspected the proposed location and reviewed the plans for the cemetery, neither of which indicated that a public-health problem would result from the construction of the cemetery. The Department recommended approval of Brock's request and included blank permit forms for Townsell's completion, if he "concurred in the cemetery request." Townsell did not grant Brock's request.

Brock filed a complaint against Townsell in the circuit court on July 23, 2004. He sought a mandatory injunction directing Townsell to grant the permit and argued that, pursuant to section 20-17-903, Townsell had no discretion to deny his request. Brock amended his complaint on October 19, 2004, to add a claim for declaratory judgment. Townsell filed a motion for summary judgment, asserting that section 20-17-903 has no application to cities of the first class such as Conway. Brock filed a response and counter-motion for summary judgment, contending that the enactment of section 20-17-903 repealed by implication Arkansas Code Annotated section 14-54-803 (Repl.1998), which empowers cities of the first class to prohibit the burial of the dead within their limits. Townsell responded, arguing that section 20-17-903 has no application to cities that have adopted zoning ordinances regulating the burial of the dead in accordance with sections 14-56-401 through XX-XX-XXX. Brock replied and asserted that the City's adoption of the zoning ordinance could not be deemed to have repealed section 20-17-903. The circuit court did not hold a hearing on the summary-judgment motions.

On March 24, 2007, the circuit court issued a letter opinion finding that the land-use ordinances enacted by the City in accordance with sections 14-56-401 through XX-XX-XXX do not conflict with the Health Department's authority to grant or deny applications for cemeteries. Specifically, "the Arkansas Health Department's findings are subject to properly adopted land use ordinances of Arkansas cities." A judgment and order, filed April 28, 2008, memorialized these conclusions. In that order, the circuit court granted Townsell's summary-judgment motion, denied Brock's summary-judgment motion, and dismissed the complaint. Brock filed a timely notice of appeal.

As a preliminary matter, we must address our jurisdiction over this appeal. Townsell argued below that the circuit court lacked subject-matter jurisdiction over Brock's claims due to Brock's failure to timely and properly appeal from the Conway City Council's decision to deny his permit application. If the circuit court was without subject-matter jurisdiction, this court would likewise be without jurisdiction to hear the appeal. Clark v. State, 362 Ark. 545, 546, 210 S.W.3d 59, 60 (2005) (citing Priest v. Polk, 322 Ark. 673, 679, 912 S.W.2d 902, 905 (1995)). This issue is not fully developed in the parties' briefs on appeal, but subject-matter jurisdiction is an issue that can and indeed must be raised by this court sua sponte. Viravonga v. Samakitham, 372 Ark. 562, 568, 279 S.W.3d 44, 49 (2008).

Arkansas Code Annotated section 14-56-425 (Repl.1998), captioned "Appeals to circuit court," is part of a chapter governing municipal building and zoning regulations and is part of a subchapter governing municipal planning. It provides as follows, in its entirety:

In addition to any remedy provided by law, appeals from final action taken by the administrative and quasi-judicial agencies concerned in the administration of this subchapter may be taken to the circuit court of the appropriate county where they shall be tried de novo according to the same procedure which applies to appeals in civil actions from decisions of inferior courts, including the right of trial by jury.

Ark.Code Ann. § 14-56-425. We have interpreted section 14-56-425 to incorporate the appeal procedure found in Arkansas District Court Rules 8 and 9.¹ Combs v. City of Springdale, 366 Ark. 31, 33, 233 S.W.3d 130, 132 (2006) (citing Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003)). In particular, Rule 9 provides that an appeal to circuit court shall be taken by filing a record of the proceedings had in the district court. District Ct. R. 9(b) (2003). Alternatively, an appellant may perfect an appeal by filing an affidavit showing that he or she has requested the clerk of the district court to prepare and certify the record and that the clerk has neglected or refused to do so. Id. § (c). All appeals to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction within thirty days from the date of entry of judgment. Id. § (a).² The filing requirements of Rule 9 are mandatory and jurisdictional, and failure to comply prevents the circuit court from acquiring subject-matter jurisdiction. Combs v. City of Springdale, 366 Ark. at 34, 233 S.W.3d at 133.

This court has previously held that Rule 9 applies to city council and planning commission resolutions via section 14-56-425. Ingram v. City of Pine Bluff, 355 Ark. at 134, 133 S.W.3d at 385. We have further held that section 14-56-425 applies to appeals of actions of a city council when the act complained of is the city's application of its zoning regulations. Green v. City of Jacksonville, 357 Ark. 517, 521, 182 S.W.3d 124, 126 (2004) (citing City of Jonesboro v. Vuncannon, 310 Ark. 366, 837 S.W.2d 286 (1992)).

It is undisputed that Brock did not perfect an appeal from the City Council to the circuit court within the thirty-day time limitation of Rule 9. However, Brock suggested below that his complaint, which sought declaratory and injunctive relief, was not intended as an appeal of the City Council's decision. This court has previously affirmed grants of summary judgment and judgment on the pleadings for failure to comply with Rule 9, even when the complaint filed in circuit court seeks declaratory and injunctive relief and therefore does not appear to be a direct appeal of a city council's decision. See Green v. City of Jacksonville, supra; Ingram v. City of Pine Bluff, supra. In Green, the Jacksonville City Council voted to approve the appellant's proposed plat with the condition that he would construct sidewalks in accordance with an ordinance requiring sidewalks in all subdivisions. 357 Ark. at 519, 182 S.W.3d at 125. The appellant filed an action against the city in circuit court, seeking a declaration that the city council's action was void and an injunction to stop the city council from forcing him to construct sidewalks. Id. This court affirmed the circuit court's grant of summary judgment in favor of the city on the basis that subject-matter jurisdiction was lacking due to the appellant's failure to appeal within thirty days. Id. at 519-20, 182 S.W.3d at 125-26. We rejected the appellant's argument that his complaint was not an appeal of the substance of the city council's decision, but rather an assertion that the city council had acted beyond its statutory and procedural authority. Id. at 520, 182 S.W.3d at 126.

Under the Green rationale, Brock may not circumvent the requirements of Rule 9 by seeking declaratory and injunctive relief if his complaint is actually an appeal of the City Council's decision. We conclude, however, that Brock has abandoned the avenue of relief available to him from the City Council and subsequent appeal of its decision. Instead, he sought relief from Townsell in accordance with section 20-17-903, making section...