September hearing set in suit over $18 fee

Wednesday, July 10, 2019

By Scott Loftis

A trial date has been scheduled for mid-September in a class-action lawsuit challenging the legality of an annual $18 fee that is being included on property tax assessments in Carroll County in connection with a failed landfill.

Fayetteville attorneys Matt Bishop and Wendy Howerton filed an amended complaint last week on behalf of plaintiff Paul Summers of Berryville, and Carroll County Circuit Judge Scott Jackson issued an order on Tuesday, July 2, rescheduling the trial date for Friday, Sept. 13, at the Carroll County Eastern District Courthouse in Berryville. The case had been set for trial on June 19, but was continued at the plaintiff’s request.

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

The $18 assessment is included on the 2018 tax statements for property owners in Carroll, Baxter, Boone, Marion, Newton and Searcy counties — the six counties that composed the solid waste district. After filing suit in Carroll County, Bishop and Howerton have since filed similar complaints in each of the other five affected counties.

Pulaski County Circuit Judge Tim Fox issued an order imposing the fee on April 21, 2017, following the recommendation of Geoffrey Treece, an attorney with the Little Rock firm of Quattlebaum, Grooms and Tull who was appointed by Fox to act as a receiver for the solid waste district.

Treece recommended that the fee be imposed to recoup bondholders who purchased $12,340,000 in bonds issued by the solid waste district in October 2005 to finance the purchase of the North Arkansas Board of Regional Sanitation (NABORS) Landfill in Baxter County. The $18 assessment, which is likely to continue for 30 years or more, also is intended to repay up to $16.5 million that the Arkansas Department of Environmental Quality (ADEQ) is expected to spend cleaning up the site of the landfill.

Summers’ lawsuit alleges that the $18 annual assessment constitutes a tax on property owners in the six counties and is an “illegal exaction,” that the solid waste district does not have the authority to impose a tax, that there is no statutory basis for the assessment, that the assessment is barred by Amendment 65 (adopted in 1986) to the state constitution, that the solid waste district is statutorily barred from charging the $18 fee to pay bondholders, that the ADEQ appropriations bills are unconstitutional, that a court cannot impose a tax and that the solid waste district’s board of directors did not approve the $18 charge.

The suit asks the court to declare that the $18 charge is an illegal exaction and that the ADEQ appropriations bills are unconstitutional, to enjoin the defendants from levying or collecting the $18 charge and to refund any amounts already paid, and to award reasonable attorneys’ fees “to be paid from the sums illegally exacted.”

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