City of Dover v. Barton, 98-907
| Decision Date | 08 April 1999 |
| Docket Number | No. 98-907,98-907 |
| Citation | 337 Ark. 186,987 S.W.2d 705 |
| Parties | CITY OF DOVER, Appellant, v. A.G. BARTON, et al., Appellees. |
| Court | Arkansas Supreme Court |
David H. McCormick, Russellville, AR, for Appellant.
Donald Wayne Bourne, James Dunham, Alexander Graham Strett, Russellville, AR, for Appellee.
The City of Dover (hereinafter "Dover") appeals from a final decree enjoining Dover from constructing, operating, or maintaining a sewage-treatment facility due to a violation of Act 1336 of 1997, now codified atArk.Code Ann. § 14-235-203 (Repl.1998). Because the trial court applied Act 1336 retroactively and because the appellees failed to exhaust their administrative remedies, we reverse and remand.
On July 22, 1996, the Dover City Council passed an ordinance calling for a special election on whether to issue bonds to finance a sewage-treatment facility. The voters approved the bond issue. On February 18, 1997, the Pollution Control and Ecology Commission issued a draft construction permit to Dover for the sewage-treatment facility, and a public hearing on the draft permit was held on April 17, 1997.
In May of 1997, Dover contracted to buy fifteen acres near Baker's Creek to build the facility, which is within ten miles of the Dover corporate limits. In July 1997, Dover entered into a contract with a contractor for the construction of the facility, and construction commenced. On July 31, 1997, the Pollution Control and Ecology Commission issued its final construction permit. On September 8, 1997, various interested petitioners, other than the appellees, filed a response to the final permit, but the Commission ruled that the response, which was a request for rehearing, was untimely.
On July 25, 1997, appellees A.G. and Bettye Barton and Jay and Edith King (hereinafter "Bartons"), who were landowners near the proposed construction site, sued Dover in chancery court for taking their land by inverse condemnation. They asked that the construction be stayed and for damages. Dover moved to dismiss on the basis that damages could not be awarded in chancery court, and the Bartons amended their complaint to ask for injunctive relief due to a violation of Act 1336 of 1997.
On August 12, 1997, appellee City Corporation, which operates a sewage-treatment plant in Russellville, filed a separate lawsuit against Dover for violation of its contract to treat Dover's sewage. This lawsuit was consolidated with the Bartons' litigation. On August 22, 1997, appellee City of Russellville intervened and alleged that Dover had violated Act 1336 of 1997 and that its proposed sewage-treatment facility constituted a public nuisance.
On August 26, 1997, the trial court held a hearing and concluded that Dover had not complied with Act 1336 and issued a temporary injunction. Cross motions for summary judgment were filed, and on March 24, 1998, the trial court ruled that Dover was in violation of Act 1336 and enjoined further construction. On June 24, 1998, the trial court entered its final decree enjoining the project and declining to reach the other issues raised.
Dover initially advanced multiple points on appeal which included a recusal motion for the trial court and constitutional challenges to Act 1336, but Dover has now conceded that those issues do not constitute reversible error. The remaining issues include the retroactive application of Act 1336 and the subject matter jurisdiction of the trial court to enforce the Act.
Because this appeal turns on whether Act 1336 was appropriately applied to this project, the effective date of Act 1336 is all important. On April 11, 1997, Act 1336 was enacted into law. However, an effort to add an Emergency Clause to the original bill failed, which meant that the Act's effective date was August 1, 1997. There is no language in Act 1336 stating that the Act is to be applied retroactively. Our law is clear that absent language in the legislative act to the contrary, statutes affecting substantive rights are to be given only prospective application. See Arkansas Dep't of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993). It is presumed that the General Assembly intended prospective application unless the language of the act clearly admits no other construction. Arkansas Rural Med. Practice Student Loan and Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987). Any doubt on the matter is resolved against retroactive application. Id.
Prior to August 1, 1997, the statute that Act 1336 amended provided that municipalities had jurisdiction for ten miles outside of their corporate limits for the purpose of building sewage-treatment facilities. See Ark.Code Ann. § 14-235-203 (Supp.1995). Prior to Act 1336, § 14-235-203 also provided that every municipality was authorized to construct, operate, and maintain a sewage-treatment center inside or outside its corporate limits. With Act 1336, § 14-235-203 was amended to read:
However, before a municipality may construct, operate, or maintain a sewage collection system or sewage treatment plant outside of the corporate limits, it must be demonstrated in accordance with subsection (d) of this section that such construction, operation, or maintenance within the corporate limits is not feasible. If it is determined that it is not feasible to construct, operate, or maintain the sewage collection system or sewage treatment plant within the corporate limits, the feasibility of constructing, operating, or maintaining the sewage collection system or sewage treatment plant within the municipality's seven-year growth area must be determined in accordance with subsection (d) of this section.
Ark.Code Ann. § 14-235-203(c)(1) (Repl.1998). Act 1336 further provided that the determination of feasibility must include the municipality's best efforts to locate the sewage-treatment facility inside the corporate limits and also must address certain factors, including the material adverse effect on real property in locating the facility outside of the corporate limits.
We view the applicability of Act 1336 as affecting those sewage-treatment facilities constructed after the effective date of the Act. Clearly, in such circumstances the feasibility study must be done before construction can commence. If construction by Dover commenced under § 14-235-203 prior to the effective date of Act 1336, that Act would have no pertinence. We believe that is...
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