Judge refuses to dismiss lawsuit over $18 landfill fee

Friday, December 14, 2018

The class action lawsuit seeking to overturn an $18 charge being assessed to landowners in Carroll County and five other counties in north Arkansas will move forward, according to an order issued Tuesday by Circuit Judge Scott Jackson.

Fayetteville attorneys Matt Bishop and Wendy Howerton filed the class-action 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 Carroll County 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. Pulaski County Circuit Judge Tim Fox, presiding over a case in which Bank of the Ozarks (now Bank OZK) sued the solid waste district on behalf of the bondholders, ordered the solid waste district to impose the fee. Fox’s order followed the recommendation of Geoffrey Treece, a Little Rock attorney whom the judge appointed to serve as a receiver for the solid waste district.

Jackson’s ruling on Tuesday came a little more than three months after an Aug. 28 hearing at the Carroll County Eastern District Courthouse in Berryville, when the judge heard arguments from attorneys for both sides on defense motions to have the case dismissed. Defense attorneys also argued that because the $18 charge stems from a Pulaski County court ruling, Carroll County is not the proper venue for Summers’ lawsuit.

“The present action seeks a judicial declaration as to the validity of that $18 assessment,” Jackson writes in Tuesday’s order. “The relief sought herein is separate from the Pulaski County action and venue for plaintiff’s illegal exaction petition is Carroll County.”

On Monday, Bishop and Howerton filed a motion seeking a summary judgment — in effect asking Jackson to rule in favor of Summers based on the facts already established. No hearing date for arguments on that motion has been set, and as of Thursday afternoon there was no response from defense attorneys.

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