458 [363 CITY of DOVER and Johnny Waldo, Mayor v CITY of RUSSELLVILLE 04-1112 215 S W3d 623 Supreme Court of Arkansas Opimon delivered October 13, 2005 APPEAL & ERROR — INJUNCTIVE MATTERS — STANDARD OF REVIEW — The supreme court reviews injunctive matters de novo, the decision to grant or deny an injunction is within the discretion of the tnal judge, the standard of review is abuse of discretion, in reviewing the lower court's findings, the supreme court gives due deference to that court's superior position to determine credthility of the witnesses and the weight to be accorded to their testimony INJUNC-TION PERMANENT-INJUNCTION=—=GROUNDS FOR — A permanent injunction is an injunction granted after the matter has been heard on the merits, to establish sufficient grounds for a permanent injunction, the movant must show (1) that it is threatened with irreparable harm, (2) that this harm outweighs any injury that granting the injunction will inflict on other parties, (3) a likelihood of success on the merits, and (4) that the public interest favors the injunction: INJUNCTION — IRREPARABLE HARM — TOUCHST ONE OF INJUNC-TIVE RELIEF — Irreparable harm is the touchstone of injunctive rehef, harm is normally only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law 4 STATUTES — LAND-USE ORDINANCES & REGULATIONS PROMULGATED PURSUANT TO STATUTE — PROPOSED DEVELOPMENT VIOLATED APPELLEE'S FLOOD-DAMAGE PREVENTION ORDINANCES & WAS THEREFORE ILLEGAL — Pursuant to Ark. Code Ann: 5 14-56- 413(a)(2)(A)(i) (Repl: 1998), appellee promulgated land-use ordinances and regulations controlling the property where the sewage treatment plant was to be constructed, those regulations restricted construction in areas prone to flooding; the circuit court found that "the Dover Tract is in a flood prone area," and that "the proposed development of the Dover Tract for use as a sewer treatment plant
CITY OF DOVER v CITY OF RUSSELLVILLE ARK ] Cite as 3h3 Ark 458 (2005) 459 violates the Russellville Flood Damage Prevention Ordinances, and is therefore illegal", this finding was correct, STATUTES — ARK rnDE ANN 5 14-268-105 SPECIFICALLY PROVIDED FOR REMEDY OF INJUNCTI n N TO PREVEN T & L ESSEN Flnnn HAZARDS & LOSSES — TRIAL COURT AFFIRMED WHERE P IGHT 1:7 F-SULT REACHED FOR WRONG REASON — The statutes contained in Chapter 268 on flood-loss prevention were enacted in 1%9 following the passage of the National Flood Insurance Act; the statutes provide communities in Arkansas with the authority to take appropriate actions to prevent and lessen flood hazards and losses; Section 14-268-105 (Pubhc nuisance — Iniunction or abatement) of the Arkansas Code specifically provides for the remedy of an injunction, the circuit court's ruling was not based on section 14-268-105, however, the supreme court will affirm the trial court's judgment if it reached the right result, even though it may have announced the wrong reason APPEAL & ERROR — ISSUE NOT RAISED UNTIL POST-TRIAL BRIEF — ARGUMENT WAIVED — Where appellant's argument that its power of eminent domain was superior to the power of a city to regulate land use pursuant to its pohce powers was first raised in its post-tnal bnef, the issue was waived Appeal from Pope Circuit Court Dennis Charles Sutterfield, Judge, affirmed Michael S. Robbins, P.A., by: Michael S, Robbins, for appellant Dunham & Faught, PA,, by: James Dunham for appellee: Iis4 HANNAH, Chief Justice, The City of Dover appeals a j judgment of the Pope County Circuit Court entering an injunction prohibiting construction of a sewage treatment plant and operation of that plant upon completion. We affirm, holding that Dover's construction of a sewage treatment at the proposed site (the Dover Tract) constitutes a public nuisance as a matter oflaw as defined in Ark. Code Ann: 5 14-268-105 (Repl, 1998): Dover argues that its power of eminent domain trumps the City of Russellville's police power in regulating land use, thereb y freeing it from compliance with Russellville's land-use ordinances and regulations: However, throughout the case, Dover acknowledged that it was obligated to romply with Russellville% l i nd-use ordimuces And regulations It was
C11 Y Ol DOVL1 4 _ IL Ci cu- RUSSELLVILLE 460 Cite as 363 Ark 458 (2005) [363 only in a post-tnal bnef that Dover raised the issue of its emment-domain power: We affirm the circuit court finding that the argument was waived This case arises from the longstanding dispute between Dover and the City of Russellville that began in 1996 when Dover acquired fourteen acres within one mile of the Russellville City limits for construction of a sewage plant: I Dover started looking for a location for a sewage treatment plant more than ten years ago: It acquired the subject property by purchase and began soil work in preparation for construction when lawsuits were filed: Russellville argued that its land-use law prohibited the construction: Later, Russellville annexed the subject property, bringing the property within the Russellville city limits [1] At issue is whether the circuit court erred in granting an injunction restraining Dover from building and operating a sewage Treatment plant. This court reviews injunctive matters de novo: Delancy v. State, 356 Ark 259, t51 S.W 3d 301 (2004) The decision to grant or deny an injunction is within the discretion of the trial judge. Id. The standard of review is abuse of discretion Id In reviewing the lower court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony Id, Permanent Iwunction [2, 3] The circuit court granted a permanent injunction: A permanent injunction is an injunction granted after the matter has been heard on the merits: State Comm'n on Human Relations 12: Talbot County Det. Ctr., 370 Md. 115, 136, 803 A:2d 527 (2002): To establish sufficient grounds for a permanent injunction, the movant must show (1) that it is threatened with irreparable harm, (2) that this harm outweighs any injury which granting the injunction will inflict on other parties, (3) a hkehhood ofsuccess on the ments, and (4) that the pubhc interest favors the injunction United Food and Commercial Workers, Intern Union v Wal Mart Stores, ' See City of Dover v City of Russellville, 352 Ark 299, WO S W 3d 689 (2003), City of Dover v City of Rnssellville, 351 Ark 557, 95 S W3d 808 (2003), City of Dover v City of RusAhnlle, 346 Ark 279, 57 S W3d 171 (2001), City of Dover v Barton, 342 Ark 521, 29 S W3d 698 (2000), City of Dover v Barton, 337 Ark 186, 987 5 W2d 705 (1999)
CITY OF DOVER V. CITY OF RUSSELLVILLE ARK ] Cite as 363 Ark, 458 12005) 461 Inc:, supra, Irreparable harm is the touchstone of injunctive relief, Id_ Harm is normally only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law_ Id; Dawson v Temps Plus: Inc. 337 Ark: 247,987 SW:2d 722 (1999) (citing Arkansas Wildhfe Federation v: Bekaert Cotp., 791 F Supp, 769 (W.D.Ark, 1992)), Delancy, 356 Ark: at 265: Russellville argued below and the circuit court agreed that the construction violated Russellville ordinances and regulations Prohibition against construction was granted to "prevent its (Do-ver's) announced intention to violate the ordinances of Rus-sellville:" Dover did not contest the application of the zoning ordinances. Dover instead argues that the proposed plant is not a nuisance per se and that the circuit court may not issue an injunction on a nuisance until the plant is operating and proven to be a nuisance in fact: However, Dover ignores the fact that on June 29. 2004. when the circuit court issued its decision, the proposed construction was a public nuisance as a matter of law pursuant to Ark: Code Ann. 14-56-413(a)(2)(A)(i) (kepi. 19 9 8) and, as such, subject to the permanent injunction. [4] Pursuant to Ark. Code Ann 5 14 -56 -413(a)(2)(A)(i), Russellville promulgated land-use ordinances and regulations controlling the property where the sewage treatment plant was to be constructed. City of Dover v, Barton, 342 Ark 521, 29 S W 3d 698 (2000) Those regulations restricted construction in areas prone to flooding: The circuit court found that "the Dover Tract is in a flood prone area," and that "the proposed development of the Dover Tract for use as a sewer treatment plant violates the Russellville Flood Damage Prevention Ordinances, and is therefore illegal:" This finding is correct: [5] Section 14-268-105 (Public nuisance — Injunction or abatement) provides: Every structure, building. fill, or development placed or maintained within any flood-prone area in violation of measures enacted under the authonty of this chapter is a public nuisance: The creation of any of these may be enjoined and the maintenance thereof may be abated by action or suit of any city, town, or county, the state, or any citizen of this state:
CI Y lit . DOVER /L CITY OF RUSSELLVILLE 462 Cite as 363 Ark 458 (2005) [363 Thc statutes Lontamed in Chapter 268 on flood-loss prevention were enacted in 1969 following the passage of the National Flood Insurance Act: The statutes provide communities in Arkansas with the authority to take appropriate actions to prevent and lessen flood hazards and losses_ Hurst v, Holland, 347 Ark 235, 61 S.W.3d 180 (2001) (citing Ark. Code Ann 5 14-268-101(5)(Repl, 1 99 8)), Section 14-268-105 specifically provides for the remedy ofan injunction: We realize that the circuit court's ruling was not based on section 14-268-105. However, this court will affirm the trial court's judgment if it reached the right result, even though it may have announced the wrong reason State Farm Fire and Cas. Co. v: Andrews, 363 Ark. 67, 210 S W 3d 8% (2005) Eminent Domain [6] Dover argues that its power of eminent domain is superior to the power of a city to regulate land use pursuant to its police powers This issue was fi — sr rafse d by Do - ver in its post-trial brief filed March 10, 2004. The circuit court stated: Dover's failure to diligently pursue this affirmative defense and/or cause of action in compliance with the Arkansas Rules of Civil Procedure constitutes a waiver of the same and Dover is barred from raising it at this time By failing to properly raise and develop the argument on eminent domain, Dover waived it: See, e.g., Ray & Sons Masonry v, United States Fidelity, 353 Ark, 201, 114 S.W.3d 189 (2003)
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