Posted by: Patricia Salkin | February 3, 2015

AR Appeals Court Finds no Prohibited Conflict Where Planning Board Members Recuses Himself from Voting but Participates in Discussion

Following the denial of their application to use a portion of their property for storing wrecked and impounded vehicles, the Lewises’ appealed arguing that a recused board member’s continued participation in the application process deprived them of their due-process rights.

Jimmy and Jill Lewis (Plaintiffs) moved to a subdivision in Siloam Springs in 2006 and decided to open a towing business near their home in 2007. The Plaintiffs’ neighbors immediately filed complaints in regards to the towing business and Kenneth Knight, a later appointed member of the Benton County Planning Board in 2009 and also a Plaintiff’s neighbor, was among the complainants. The Plaintiffs applied for a large-scale permit in 2012, and the minutes of the meeting revealed that Knight voiced his opposition to the granting of the permit, as he found that the towing company would decrease property values, increase traffic through the neighborhood, create nuisance through lights and noises and create water contamination. Additional meetings were held and despite the Plaintiffs proposals and answers to specific questions, the Board decided to vote against the permit 5-1 for inadequate evidence that the proposed land use would be consistent and compatible with existing patterns of development in the area and because the potential nuisance mitigation measures were insufficient to ensure compatibility. Knight was ultimately recused from voting on the permit but was still able to voice his opinions during the voting process.

The Plaintiffs appealed claiming that Knight’s participation in the process after his recusal created a conflict of interest. The Benton County Circuit Court held that Knight did not abuse his discretion as a Planning Board member, and that the Plaintiffs’ due process rights were not violated. The Plaintiffs appealed again claiming that Knight’s continued participation in the application process deprived them of their due-process rights and his participation tainted the entire application process. Plaintiffs asserted that even though Knight did not vote on their proposal, he provided testimony and opinions before his fellow board members, with whom he had ex parte communications seeking to influence them and that Knight stood to benefit personally by the decision in that he admitted having a pecuniary interest involving property values.

The Court observed, “Here, Knight recused from voting on the Lewises’ proposal, and his participation was limited to speaking as a member of the general public and as a witness. We agree with the trial court’s observation that “it probably could have been done differently.” Nevertheless, the Lewises do not cite any authority to support the proposition that, even though he had recused from voting, because Knight was both a board member and a property owner, he had no right to be heard, as did his neighbors, on a matter directly impacting him and his interests. Accordingly, we cannot say that the trial court clearly erred in finding that Knight did not abuse his discretion as a board member, thereby denying due process to the Lewises.” Further the Court said, “… although the Lewises claim that Knight contaminated the entire process, we note that, with each appeal, whatever influence Knight might have had on his fellow board members became further attenuated. Knight had no connection to the justices on the Appeals Board, yet they upheld the Planning Board’s decision. The Lewises were thereafter provided with a trial de novo, meaning that the entire case was tried anew.The trial de novo was the Lewises’ opportunity to obtain an impartial decision on their application without any perceived taint resulting from Knight’s involvement, yet the Lewises introduced transcripts from the prior proceedings and even called Knight as a witness.” For these reasons, the lower courts’ decisions were affirmed.

Lewis v. Benton County, 2014 Ark. App. 316 (5/21/2014)

The opinion can be accessed at:

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