The city petitioned the Garland County Circuit Court Wednesday to validate its annexation of 621 acres south of its corporate limits and forgo a trial in the lawsuit brought against it by residents in the affected area.
Plaintiffs styled as Opponents of Ordinance 6121 are representing themselves in the lawsuit they filed Feb. 18 to overturn the annexation ordinance the Hot Springs Board of Directors adopted Jan. 19. A stay Division 1 Circuit Judge John Homer Wright issued March 10 in another lawsuit challenging the annexation suspended its scheduled April 1 enactment pending the suit's outcome.
A hearing was held last week on the city's dual motion for summary and declaratory judgment in plaintiffs George Pritchett, Russell Skallerup and Bruce Mitchell's lawsuit, but Wright has yet to issue a ruling. Division 4 Circuit Judge Marcia Hearnsberger has also yet to rule on Pritchett's separate lawsuit seeking to compel the city to certify a referendum petition on the annexation ordinance. A hearing was held Monday.
Wright denied the city's motion to consolidate the lawsuits during last week's hearing in Division 1. The dual motion for summary and declaratory judgment the city filed Wednesday challenges the Opponents of Ordinance 6121's claim that the state law the city used to annex the area is unconstitutional.
Act 109 of 2015 passed by the Legislature last year broadened the definition of enclaves, unincorporated areas surrounded by corporate limits that a city's governing body can annex by a two-thirds vote of its members, to include land bound by municipal territory on three sides and a lake or river on a fourth. The affected area, which has about 400 permanent residents living near Lakeland Drive, Lake Hamilton Drive and Buena Vista Road, is situated between the city and Lake Hamilton.
"The Arkansas Constitution is quite clear that the Arkansas Legislature can regulate municipal creation, organization, and classification," the brief in support of Wednesday's motion written by City Attorney Brian Albright and Arkansas Municipal League lawyers John Wilkerson and Mark Hayes, argued. " ... In reference to this constitutional provision the Supreme Court of Arkansas once opined: 'The framers of the Constitution left the entire matter of the organization of cities to the Legislature.'"
The brief cited further precedent demonstrating the Legislature's supremacy over municipal affairs to address the plaintiff's claim that the annexation disenfranchised area residents. According to the complaint, the city used the election provision of the annexation law to absorb territory adjoining the affected area after its residents voted down an annexation measure in 1998.
The complaint said annexing residents amenable to joining the city brought the corporate limits closer to the affected area and created a situation the city could trade on after the Legislature expanded the enclave classification.
"(The enclave law) allows a municipal corporation to contravene the will of the majority," the complaint said. "Not only is that theory repugnant to the Constitution, but to the principles of democracy, and to the principles of a republic on which America is founded."
A U.S. Supreme Court ruling that said municipal borders may be moved without citizen consent was cited in the city's brief.
"Therefore, any argument that the Arkansas Legislature is without power to establish municipal boundaries, or any other rules or regulations, is completely unsupported," the brief said. "The Constitution of Arkansas explicitly give the Legislature power over municipalities, and this has been reaffirmed by significant persuasive opinion from various entities."
The plaintiffs argue that the amended enclave classification unfairly predisposes them to involuntary annexation by virtue of their proximity to the lake, putting them on unequal ground relative to other areas with geographical features that allow their residents to join a municipality voluntarily.
The city's brief said the area is not geographically unique, as the state has more than 600,000 acres of lakes.
"Any argument that statutes relating to lakes and rivers only targets Lake Hamilton is without merit," the brief said.
Plaintiffs in both lawsuits claim that the area isn't surrounded on three sides by the city. The Opponents of Ordinance 6121 claim Lake Hamilton doesn't constitute a fourth boundary as intended by the Legislature, arguing that it's privately owned and could be lawfully annexed via election or voluntary petition of residents who own more than half of its acreage.
Local on 05/06/2016