LITTLE ROCK -- The owners of a wildlife reserve weren't allowed their due process rights when a utility company took part of their land using eminent domain, the owners' attorney said Wednesday. Attorney Sandy McMath asked state Court of Appeals judges to reverse the eminent domain case and send it back to the Benton County Circuit Court for "proper proceedings." The judges heard oral arguments Wednesday from McMath and Bill Greenhaw, an attorney for Southwest Arkansas Utilities Corp., but did not make a decision on the matter.
The arguments stem from a 2012 case, when the corporation, a subsidiary of Southwestern Electric Power Co., filed to seize certain properties -- including a part of Safari Real Estate LLC's 400-acre safari -- to build a 345-kilovolt transmission line from Flint Creek to Shipe Road Station in Benton County. The line eventually would extend to the proposed Kings River Station in Carroll County.
Safari Real Estate was created in 2006, according to the Arkansas secretary of state's website. Leon Wilmoth, son of Freda Wilmoth who is owner of the limited liability company, manages the Wild Wilderness Drive-through Safari just outside of Gentry. The safari is home to more than 85 animal species, including kangaroos and Nile River hippopotamuses. The safari is split into four quadrants. The utility company offered $36,600 to the safari owners as compensation for taking a sliver of the fourth quadrant -- some 9 acres -- to build the transmission line along the first 17-mile stretch to Shipe Road.
McMath argued that the Circuit Court erred in issuing an order of possession, favorable to the utility company, before Wilmoth had even been served with the summons or complaint. "This case could be called the ex parte Godzilla line to nowhere," he said.
He referred to the complaint to take the land filed on Aug. 14, 2012, and the ex parte order of possession that the judge signed some seven days later. Wilmoth wasn't served with a court summons until Sept. 13, 2012, McMath said, adding that the delay infringed on Wilmoth's due process rights to contest the seizure. McMath did not raise the argument during initial responses, Chief Judge Robert J. Gladwin said.
"There's no question he had the opportunity to be heard in court," Gladwin said, pointing to the 600-page court transcript. Until the summons had been served, however, there was no notice of a hearing, McMath said.
But, Greenhaw, the utility company's attorney, said Wilmoth knew the transmission line was coming. The company had to petition the Arkansas Public Service Commission, justifying the necessity of the transmission line. After such a petition, the commission sends out notices to all the property owners along the proposed route, giving them a 30-day period to intervene and voice concerns.
"The Safari group received that notice," Greenhaw said, as he gripped the sides of the lectern addressing the three appeals court judges. "They did not intervene on the case." The commission later issued the utility company a certificate of environmental compatibility and public need. "After that was done, the only issue that remained was fair market value," Greenhaw said.
Fair market value is the difference in the land's price before and after the seizure of the land. A jury determined Wilmoth should get $87,539 for the acreage. On Wednesday, McMath argued that the trial court judge did not allow certain testimony, such as how the construction of the line may affect the animals there or how it may affect the business.
Wilmoth's trial court attorney later proffered for testimony on such impact from Thomas Rife, a professional real estate appraiser.
"Mr. Rife very carefully examined this property," Mc-Math said. "He walked the acreage step by step."
In the proffered testimony, Rife had said he thought the value of the property before its seizure was about $1.6 million. The land after the seizure would essentially be worthless, he said according to court documents. "This remaining fourth quadrant has a stigma of, and will be encumbered by, this high-voltage overhead power line," Rife said. "And it is my opinion that the remaining acreage in that quadrant of 104.83 acres is damaged because it can no longer be profitably utilitized in the park."
Others would have testified that because the utility company could check on the line and "go in there willy-nilly," the animals would face constant disruption, McMath said.
That type of testimony can only be allowed if it can be tied to the fair market value, Greenhaw said.
"A lot of factors to come to [Rife's] decision couldn't be entered into evidence because he couldn't tie it into the fair market value," Greenhaw said. The jury's verdict was "a figure that's between the two experts ... and should be affirmed by this honorable court."
Petitioning for judicial notice, McMath included legal documents for the appeals court judges showing that the state commission in June 2014 granted a rehearing for the line's proposal to determine whether it was needed and any potential environmental impact, according to a commission order.
The utility company in December rescinded its application for the certificate, citing "lower future electric demand" than first expected. The power line -- from Shipe Road to Kings River Station -- has not been completed.
General News on 03/04/2015