Central Arkansas Water and Pulaski County officials are asking a circuit judge to dismiss the Little Italy community's administrative appeal of the county's decision to reject its request to become an Arkansas town.
County Judge Barry Hyde held a hearing on Little Italy's request in January and issued a ruling denying the request Feb. 26.
On March 23, Little Italy petitioners filed their notice of appeal in circuit court, asking Judge Mary McGowan to reverse Hyde's ruling and declare that Little Italy should be incorporated as the state's 502nd town. They listed Pulaski County as the defendant.
In April, Central Arkansas Water asked to intervene in the case, explaining its stake in whether the area is incorporated. About 90 percent of the proposed town is within the Lake Maumelle Watershed, which is the key source of drinking water for the 400,000 people who the water utility serves, its motion said.
Currently, there are regulations under the county's watershed zoning code that protect the area. Little Italy's incorporation would remove 8.8 square miles from county control and therefore remove more than 5,600 acres of the watershed from zoning protection, Central Arkansas Water argued.
Little Italy never responded to the utility's request to intervene in the case. Months went by before the agency's attorneys wrote to the court Aug. 4 saying that their request should be granted. It was.
On Aug. 10, Central Arkansas Water argued that the appeal should be dismissed because Little Italy didn't follow proper filing procedures. The next day, attorneys for the county filed a similar motion.
The two entities said Arkansas District Court Rule 9 requires the petitioners to submit a certified copy of all district court procedures before the circuit court can accept their appeal. They also said the Little Italy group filed only a notice of appeal, but never filed an actual complaint stating their claims and requests of the court.
Mary-Tipton Thalheimer, the attorney for the Little Italy petitioners, said the water utility and the county were ignoring provision (e) of the rule, which applies to instances when appeals pertain to a county court ruling instead of a district court, which is what is happening in this case.
Pursuant to Rule 9, "the filing of a notice of appeal and a certified copy of the county court's final judgment with the clerk of the circuit court 'shall constitute the filing of the complaint for purposes of commencing the action in circuit court,'" Thalheimer's response to the motions to dismiss said.
Little Italy attached the county court's final judgment to its appeal notice.
As to the assertion that Little Italy didn't state its claims, Thalheimer said her clients only have one: "The judgment should be reversed and Little Italy should be incorporated." That's stated in the notice of appeal.
Central Arkansas Water responded to that response earlier this month, finding another reason why it believes Little Italy didn't properly follow procedures and why the appeal should be thrown out.
The water utility said provision (e) in Rule 9 requires that petitioners name "all necessary, adverse parties as defendants" if there were no defendants in the county court proceedings.
Central Arkansas Water appeared during the county hearing opposing the incorporation attempt, and therefore it should have been listed as a defendant and served with the appeal notice, but it was not, said Judy Simmons Henry, the attorney representing the utility in the case.
David Johnson, the utility's in-house, full-time attorney, told the water agency's board of directors Thursday that he isn't sure how sound the agency's argument for dismissal is.
"It's probably not a slam-dunk for us, but we filed it and we'll see how it goes," Johnson said, adding that there should be a hearing on the motion sometime this fall.
"If that motion is denied, then I bet a trial date will be set sometime in 2017," he said.
Little Italy is a 100-year-old community known for its wine production. It's an 8.8-square-mile area in far northwest Pulaski County. There are 329 qualified voters within the boundaries of the area. About 220, or 67 percent, signed a petition to become a town.
NW News on 09/13/2016