Green v. City of Jacksonville

• Decision Date: 27 May 2004
• Docket Number: No. 03-563.,03-563.
• Parties: Jim GREEN and J. Green Development Company, Inc. v. The CITY OF JACKSONVILLE.
• Court: Arkansas Supreme Court

182 S.W.3d 124

Jim GREEN and J. Green Development Company, Inc. v. The CITY OF JACKSONVILLE.

No. 03-563.

Supreme Court of Arkansas.

May 27, 2004.

Eichenbaum, Liles & Heister, P.A., by: Christopher O. Parker, Little Rock, for appellant.

J. Denham; and Robert F. Bamburg, North Little Rock, for appellees.

ROBERT L. BROWN, Justice.

Appellants Jim Green and J. Green Development Company, Inc. (Green), appeal an order of summary judgment in favor of appellee The City of Jacksonville. The order stated that Green failed to appeal action by the Jacksonville City Council in timely fashion and that the circuit court lacked subject-matter jurisdiction to hear the appeal. We agree with the circuit court and affirm.

At issue is the development of Phase II of the Colleenwood subdivision, which is located within the city limits of the City of Jacksonville. Green first prepared a preliminary plat showing the improvements he intended to make in Phase II and submitted that plat to the city planning commission. On November 8, 1999, the preliminary plat was approved by the planning commission. Based on this approval, Green commenced construction on Phase II.

On January 20, 2000, the Jacksonville City Council enacted Ordinance 1130, which required the construction of sidewalks in all subdivisions. Green's preliminary plat did not include sidewalks. On December 11, 2000, Green's final plat received final approval from the planning commission. The planning commission stipulated that if the Master Sidewalk Plan called for sidewalks, it would not require them in Phase II, as they were not practicable.

On February 1, 2001, the Colleenwood Phase II improvements came before the City Council for dedication. The City Council, however, disagreed with the planning commission with respect to the sidewalk ordinance and approved the final plat "subject to the owner constructing sidewalks" pursuant to Ordinance 1130.

On May 22, 2001, Green filed an action against the City of Jacksonville and sought a declaration that the City Council's action was void. Green also asked for an injunction to stop the City Council from forcing him to construct sidewalks. Both parties filed motions for summary judgment. Green argued that he was entitled to judgment as a matter of law, because the City Council acted ultra vires. The City argued that Ark.Code Ann. § 14-56-425 (Repl.1998), required that Green appeal the City Council's action to the circuit court within thirty days, and because Green failed to do so, the circuit court was deprived of subject-matter jurisdiction. The circuit court granted the City's motion. Green appealed to our court of appeals, and that court reversed the circuit court's decision and remanded the case. See Green v. City of Jacksonville, 82 Ark.App. 39, 110 S.W.3d 323 (2003). We granted the City's petition for review. When this court grants a petition to review a decision of the court of appeals, we review the matter as if the appeal had been originally filed in this court. See Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002).

Summary judgment is appropriate when it is clear that there are no genuine issues of material fact at issue, and the party is entitled to judgment as a matter of law. See Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of an issue of material fact. See id. On appellate review, we determine if summary judgment was appropriate based on whether an issue of material fact has been created and remains unresolved. See Ark. R. Civ. P. 56(c); Spears v. City of Fordyce, supra. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See Spears v. City of Fordyce, supra.

The circuit court in its order concluded that it lacked jurisdiction to hear Green's declaratory-judgment action and action for injunction, because Green "failed to perfect a timely appeal of his Complaint of action to this Court within thirty (30) days in compliance with the terms of A.C.A. § 14-56-425[.]" Section 14-56-425 reads:

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.

Green first maintains that the City Council's conditional approval of his final plat was ultra vires. Under Green's theory, he was not appealing the substance of the City Council's decision but was asserting the Council acted beyond its statutory and procedural authority. He maintains that § 14-56-425 does not apply because his challenge is the type of "remedy provided by law" as contemplated by the statute. He further asserts that it was not necessary for him to appeal the City Council's action as that action was void and, thus, was not appealable.

We disagree, as this court has already decided the issue of the applicability of § 14-56-425 to city council resolutions. See Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003). In Ingram, the issue was a city council resolution to raze the appellant's property. After passage of that resolution, the appellant's property was destroyed by the City. The appellant sued for declaratory and injunctive relief. The City moved for judgment on the pleadings for failure of the appellant to appeal within thirty days under Inferior Rule 9, and the circuit occur granted the motion. This court affirmed. We said: "Rule 9 applies to city council and planning commission resolutions via Ark.Code Ann. § 14-56-425 (Repl.1998)[.]" 355 Ark. at 134, 133 S.W.3d at 385. We added that the filing requirements of Rule 9 are mandatory and jurisdictional and that failure to comply prevents the circuit court from acquiring subject-matter jurisdiction. Along these same lines, this court has previously held that § 14-56-425 applies to appeals of actions of the city council, when the act complained of is the city's application of its own zoning regulations. See City of Jonesboro v. Vuncannon, 310 Ark. 366, 837 S.W.2d 286 (1992).

Based on this precedent, we affirm the trial court. Green was required to appeal the city council's action taken on February 1, 2001, to approve his plat conditioned on compliance with the sidewalk ordinance. This he failed to do, and the circuit court properly granted summary judgment for lack of subject-matter jurisdiction.

Affirmed.

Court of Appeals reversed.

HANNAH, J., dissents.

JIM HANNAH, Justice, dissenting.

I respectfully dissent. I first note that the majority relies on Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003), and City of Jonesboro v. Vuncannon, 310 Ark. 366, 837 S.W.2d 286 (1992), in error. In neither case was the issue of an ultra vires act even raised and neither case involved the question of whether the City Council has the authority to veto a decision of the planning commission approving the final plat and "as built"plans. The reliance on the wrong precedent causes the majority to err. In Ingram, supra, the issue was over a resolution passed by the City Council ordering the destruction of Ingram's property. City councils have the authority to pass resolutions and act administratively. See, e.g. Summit Mall Co, LLC v. Lemond, 355 Ark. 190, 132 S.W.3d 725 (2003). In Vuncannon, supra, the issue was the denial of an appeal by the City Council from a decision of the planning commission. City councils have the authority to hear appeals from denial of proposals submitted to the planning commission. Ark.Code Ann. § 14-56-412(f)(2) (Repl.1998). Neither case casts any light whatever on the question of whether a city council may veto a decision of the planning commission approving plats and plans as the planning commission is charged to do under the municipal planning statutes. As a consequence of relying on the wrong cases, the majority never addresses the issues presented in this case.

First, the majority abandons longstanding civil procedure on ultra vires acts of government and lays waste to the municipal planning statutes. The majority misperceives this case as one where a party failed to meet a deadline to file and appeal from a city council decision and then attempted to collaterally attack the decision by alleging it was ultra vires. Green never attempted to appeal and argues there was nothing to appeal because the City Council acted without authority which made the decision void.

The majority's misunderstanding of the facts of this case is apparent from the outset. The majority opinion states, "The planning commission stipulated that if the Master Sidewalk Plan called for sidewalks, it would not require them in Phase II, as they were not practicable." This implies that the planning commission simply chose to ignore the ordinance on sidewalks passed by the city council. Such an act of insubordination by an administrative agency of a municipality would be a matter of concern. However, the planning commission found that Phase II was not subject to the sidewalk ordinance because the plat was submitted and accepted by the planning commission before the ordinance was adopted. The work carried out by Green and given final approval by the planning commission was completed pursuant to the preliminary plat approved by the planning commission more than sixty days before the sidewalk ordinance was passed by the city council. This fact is critical, and its absence in the majority opinion helps to illustrate the misunderstanding that has caused the majority to err. Implicit in the majority opinion is a concern of how a city council is to...