Jack Garrison et al. v. City of North Little Rock

Jack GARRISON et al. v. CITY OF NORTH LITTLE
ROCK

97-642                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 5, 1998


1.   Appeal & error -- constitutionally protected property interest
     claimed by appellants -- appellants failed to provide legal
     authority for such interest. -- Where appellants failed to
     cite any supporting legal authority for the proposition that
     appellee city's action deprived them of a constitutionally
     protected property interest in a buffer zone situated on
     adjoining real property, the issue was not addressed on
     appeal. 

2.   Appeal & error -- abstract flagrantly deficient -- case
     affirmed. -- Where appellants' record, abridgement of record,
     and citation of supporting legal authority were so deficient
     that the supreme court could not fully consider and decide
     their arguments on appeal, the case was affirmed.  


     Appeal from Pulaski Circuit Court; Morris W. Thompson, Judge;
affirmed.
     David P. Henry, for appellants.
     Timoth Davis Fox, for appellee.

     Tom Glaze, Justice.
     The appellants are North Little Rock property owners whose
lots back up to and adjoin the northern boundary of a commercial
development, Lakewood Village Subdivision.  A platted forty-foot
buffer zone divided the commercial property and the residential
lots.  Apparently the commercial development owner applied to the
North Little Rock Planning Commission for a waiver of the buffer
zone, and the request was granted.  Immediately afterwards, the
developer removed the trees and other greenery from the buffer
zone, and built a retaining wall in place of the greenery.
     Appellants filed suit in circuit court against the City of
North Little Rock, alleging a wrongful taking of property.  They
asserted that the City's action in granting the commercial
developer a waiver was done without giving them notice and a
hearing.  This failure of notice and hearing, appellants alleged,
violated city ordinances and represented a loss of a property right
without due process and just compensation.  The City answered,
denying the appellants' complaint, and subsequently moved for
summary judgment.  The City attached ten exhibits in support of its
motion.  After appellants filed their response, the circuit court
granted the City's motion, holding the appellants had no protected
property interest in the platted buffer zone, so no due process
rights were violated.  Appellants brought this appeal, disagreeing
with the trial court's decision.
     On appeal, the City initially argues the appellants have
failed to comply with this court's abstracting requirements and
submits this deficiency requires affirmance.  We must agree.  The
transcript in this case is 395 pages, but 373 pages are omitted
from the abstract.  None of the ten exhibits to the City's Motion
for Summary Judgment were abstracted, which omissions include a
"screening or buffering" ordinance exhibit and a planning
commission regulation excerpt exhibit that dealt with buffer-zone
strips located between commercial and residential properties.  Nor
have appellants provided us with the ordinance(s) that they claim
give them a right to notice and a hearing before any waiver of
buffer zones can be granted by the planning commission or City. 
And while the appellants claimed below that the planning
commission's regulations and the City's "screening ordinance" gave
them a property interest in the disputed forty-foot buffer zone,
those regulations or ordinances are not a part of the abstract of
record.
     Appellants state in their reply brief that they did not
abstract the ordinance establishing their entitlement to notice
because such ordinance was not in the record.  Such a concession,
however, only suggests that the failure-of-notice issue they argue
on appeal was not properly preserved at the hearing below.  Also,
while appellants attempt to justify the ordinance abstract omission
by saying, "the City has not suggested appellants were not entitled
to a notice or hearing," their statement ignores the point that it
is their burden to establish their due process argument and to
demonstrate error.
     In conclusion, the trial court below and the City on appeal
point out that the appellants failed to cite any supporting legal
authority for the proposition that the City's action had deprived
them of a constitutionally protected property interest in a buffer
zone situated on adjoining real property.  On this point,
appellants mention only Ark. Const. Art. 2,  13, which generally
provides that every person is entitled to a remedy for all injuries
or wrongs he may receive to his person, property, or character. 
They do cite Richardson v. City of Little Rock Planning Comm'n, 295
Ark. 189, 747 S.W.2d 116 (1988), but the Richardson decision does
not involve the due process issue appellants attempt to raise here. 
Though appellants offer considerable factual discussion and
argument bearing on this point for reversal, their supporting legal
authority is severely lacking and requires further research.
     Because appellants' record, abridgement of record, and
citation of supporting legal authority are so deficient that we
cannot fully consider and decide their arguments on appeal, we must
affirm.  See Ark. Sup. Ct. R. 4-2(a)(6) and (b)(1) and (2) (1997);
Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994);
Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996).