Judge hears motions in lawsuit over $18 landfill fee

Friday, August 31, 2018

The legal fight to overturn an $18 fee being charged to property owners in six north Arkansas counties — including Carroll — had its first of what are likely to be many days in court on Tuesday in Berryville.

Carroll County Circuit Judge Scott Jackson heard arguments regarding motions from both sides of the aisle and also asked attorneys on both sides to answer some questions he has about the case.

Attorneys Matt Bishop and Wendy Howerton filed the lawsuit May 16 in Carroll County Circuit Court, on behalf of Paul Summers of Berryville. They have since filed similar complaints in Baxter, Boone, Marion, Newton and Searcy counties, contending that the $18 fee is in fact a tax and amounts to an illegal exaction.

Defendants in the lawsuit are the Ozark Mountain Solid Waste District and Carroll County tax collector Kay Phillips.

The $18 fee has been added to property tax assessments in the six counties in order to repay delinquent bonds issued by the Ozark Mountain Solid Waste District to purchase the now-defunct North Arkansas Board of Regional Sanitation Landfill in Baxter County and to reimburse the Arkansas Department of Environmental Quality for the costs of cleaning up and closing the landfill.

Among the issues discussed during Tuesday’s hearing were motions filed by both Carroll County Prosecuting Attorney Tony Rogers and Little Rock attorney Mary-Tipton Thalheimer seeking to have the lawsuit dismissed on multiple grounds. Thalheimer represents Geoffrey Treece, a fellow attorney with the Quattlebaum, Grooms & Tull firm who serves as a court-appointed receiver for the Ozark Mountain Solid Waste District in the original case that ultimately resulted in the imposition of the $18 fee. The motion filed by Thalheimer on Treece’s behalf is titled “Ozark Mountain Solid Waste District’s Motion to Dismiss.” Rogers and Thalheimer also argue that ADEQ and Bank OZK — formerly Bank of the Ozarks, trustee for the bondholder — should have been named as defendants in the suit.

Bishop argued that as a court-appointed receiver, Treece has no standing to seek dismissal in the name of the solid waste district and in fact has a fiduciary duty to multiple parties, including the taxpayers who are affected by the $18 fee. Bishop also pointed out that in the original case, the waste district had its own attorney.

“The receiver’s not acting for the district,” Bishop said. “He’s acting for the court.”

Both deputy prosecuting attorney Craig Parker and Thalheimer argued that the proper venue for Summers’ complaint is Pulaski County Circuit Court, where the order directing the solid waste district to impose the $18 fee was issued by Judge Tim Fox.

Thalheimer described Summers’ lawsuit as an “attack” on Fox’s order.

“I think it needs to be clear that this case isn’t about a judge’s order,” Bishop said, adding that the real crux of the case is whether the solid waste district has the legal authority to impose the $18 fee.

Bishop described the fee as a “essentially a bank bailout by taxpayers,” and noted that the taxpayers have no standing to appeal Fox’s order because they weren’t a party to the original lawsuit.

Jackson asked the attorneys whether any of them had an objection to him presiding over the case despite being a property owner affected by the $18 fee. Attorneys on both sides said they had no objection on those grounds.

Jackson also asked what will happen should the six separate lawsuits yield inconsistent and perhaps conflicting results, and also asked who represented the taxpayers in the original case.

Jackson advised the attorneys to file written responses to his questions within 15 days and said he would attempt to rule on the motions “in a speedy fashion.”

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