                                Cite as 2014 Ark. App. 316

                 ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CV-13-856


                                                 Opinion Delivered   May 21, 2014
JIMMY LEWIS and JILL LEWIS, d/b/a
DOWNTOWN TOWING                                  APPEAL FROM THE BENTON
                       APPELLANTS                COUNTY CIRCUIT COURT
                                                 [NO. CV-2012-1577]
V.
                                                 HONORABLE BRAD KARREN,
BENTON COUNTY, ARKANSAS                          JUDGE
                   APPELLEE

                                                 AFFIRMED



                             BILL H. WALMSLEY, Judge

       The Benton County Circuit Court denied appellants Jimmy and Jill Lewis d/b/a

Downtown Towing’s application to use a portion of their property for storing wrecked and

impounded vehicles. In its judgment, the trial court specifically found that the Lewises’ due-

process rights were not violated. The Lewises’ sole point on appeal is that a recused board

member’s continued participation in the application process deprived them of their due-

process rights. We affirm.

       The Lewises live in a subdivision called Meadow Wood in Siloam Springs. When the

Lewises moved there in 2006, there were no protective covenants in the residential

neighborhood. In December 2007, the Lewises opened Downtown Towing near their home.

The evidence shows that complaints about the business began almost immediately, including

multiple complaints by a neighbor, Kenneth Knight, who was later appointed as a member
                                 Cite as 2014 Ark. App. 316

of the Benton County Planning Board (Planning Board) in 2009. When the Lewises sought

to use a lot on their property for temporary storage of wrecked and impounded vehicles, they

were told that they must apply for a large-scale development permit. On March 15, 2012, the

Lewises submitted their application.

         On April 18, 2012, the Planning Board held a Technical Advisory Committee (TAC)

meeting. The meeting minutes reveal that, under a section entitled “general public

comments,” Knight voiced his opposition to the Lewises’ project. Knight’s concerns were the

decreased property values it would cause, the increased traffic through the neighborhood, the

nuisance created by lights and noises, and possible water contamination. Another neighbor

raised similar concerns, also noting that she could see the wrecked vehicles from her home.

         On May 16, 2012, the Planning Board held a public hearing. Knight was not present.

Jill Lewis answered questions from the Planning Board members, and she chose to table the

matter to give her more time to gather additional information to present to the Planning

Board.

         The Planning Board held another public hearing on June 6, 2012. Knight was present

for roll call; however, the meeting minutes indicate that he recused from voting on the

Downtown Towing project. Staff made several recommendations, to which the Lewises

agreed. The Planning Board then opened the meeting for public comments. At least six

neighbors voiced opposition to the Lewises’ proposed use of their land, including Knight. The

Planning Board then voted against the Lewises’ proposal five to one. The Planning Board’s

denial was based on the Lewises’ failure to present adequate evidence that the proposed land


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use would be consistent and compatible with existing patterns of development in the area and

because the potential nuisance mitigation measures were deemed insufficient to ensure such

compatibility.

       Pursuant to Ark. Code Ann. § 14-17-203(g)(1)(A) (Repl. 1998), a county quorum

court may elect to act as a board of administrative appeal prior to an appeal to circuit court

from a decision of the county planning board. In July 2012, the Lewises appealed to the

Benton County Justice of the Peace, who appointed three justices to sit on a panel (Appeals

Board) pursuant to Ark. Code Ann. § 14-17-203(g)(1)(C). The Lewises argued, in part, that

Knight’s continued participation in the process after recusing due to a conflict of interest

violated their due-process rights. Once again, Knight and approximately five other property

owners in Meadow Wood voiced opposition to the Lewises’ proposal. The Appeals Board

voted two to one to uphold the Planning Board’s decision.

       The Lewises then appealed to the Benton County Circuit Court. Arkansas Code

Annotated section 14-17-211 (Repl. 1998) provides that, in addition to any remedy provided

by law, appeals from final action taken by administrative, quasi-judicial, and legislative

agencies may be taken to the circuit court. That section further provides that appeals shall be

tried de novo in circuit court according to the same procedure applicable to appeals in civil

actions from decisions of inferior courts, including the right of trial by jury. The parties agreed

to include in the record on appeal the entire proceedings, including exhibits, before the

Planning Board and Appeals Board.

       At a bench trial, Jill Lewis testified that other businesses were located in the Meadow


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Wood subdivision, including a clock shop operated out of Knight’s garage. Jill stated that she

was told that she and Jimmy had to apply for a permit because Knight was “pushing the

issue.” Jill confirmed that Knight had registered complaints against their business in 2008 and

2012. She stated that Knight did not mention his recusal at the TAC meeting and that Knight

arrived with the woman who also spoke in opposition at that meeting. Jill testified that she

did not recall whether Knight was sitting on the board at the time of her presentation at the

TAC meeting. Jill stated that, although Knight announced his recusal at the June public

hearing, he nevertheless participated in the public discussion.

       Christopher Ryan, Director of Planning and Environmental Services, testified that

Knight had announced his recusal shortly before the TAC meeting. Ryan testified that the

purpose of such meetings is to determine an applicant’s intentions with regard to the proposed

use of their land. According to Ryan, the TAC meeting is not a public hearing, but rather is

an opportunity for the applicant to “hash out any concerns” after the staff gives its initial

report and preliminary recommendations. Ryan identified an e-mail from Knight to other

board members dated May 4, 2012, stating that he was recusing from the Downtown Towing

project. Ryan conceded that Knight’s announcement in the e-mail was followed by his

comment concerning a road leading into the towing-storage area. Ryan stated that it was

normal for board members to sit with the public after they had recused from voting.

       The Lewises then called Knight as a witness. Knight testified that he recused from

voting on the Lewises’ project before the TAC meeting due to his conflict of interest.

According to Knight, he was only voicing his opinion and concerns as a resident of Meadow


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Wood, and he noted that other residents had expressed similar concerns. Knight agreed that

he referred to his six-years’ experience as chairman of the Siloam Springs Planning

Commission before the Planning Board but that his fellow board members were capable of

thinking for themselves. Knight pointed out that the justices on the Appeals Board had “no

idea who [he was]” and simply heard what he had to say.

       In its judgment denying the Lewises’ application, the trial court ruled in relevant part:

       The Court finds that clearly there was a conflict of interest that Ken Knight identified
       that he had with Downtown Towing and the Plaintiffs. Although Ken Knight
       presented opposition at the TAC meeting, the TAC meeting is a preliminary meeting
       to determine how to proceed to the next level which would have been the hearing.
       Knight clearly recused on May 6th, 2012, and then did not participate in the May 16th
       hearing and did not participate in the June 6th hearing as an adjudication official but
       did participate as a witness and likewise did so at the appeal hearing and likewise did
       so today. The Court finds that although it probably could have been done differently,
       Knight did not abuse his discretion as a Planning Board member. Based upon the
       finding of this Court, the Benton County Appeal Board, and the Planning
       Commission Board, I find that Plaintiffs’ due process rights were not violated.

       We will affirm the circuit court’s findings unless they are clearly erroneous or clearly

against the preponderance of the evidence. Bolen v. Washington Cnty. Zoning Bd. of

Adjustments, 2011 Ark. App. 319, 384 S.W.3d 33. A finding is clearly erroneous when,

although there is evidence to support it, the reviewing court on the entire evidence is left

with a firm conviction that a mistake has been committed. Id.

       The Lewises argue that they were deprived of due process because they did not have

their case heard by a fair and impartial tribunal from the outset of the proceedings. They

maintain that Knight did not recuse until after he had tainted the entire application process.

The Lewises argue that, even though Knight did not vote on their proposal, he provided


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testimony and opinions before his fellow board members, with whom he had ex parte

communications seeking to influence them. The Lewises further assert that Knight stood to

benefit personally by the decision in that he admitted having a pecuniary interest involving

property values.

       The Lewises cite several cases—many from other jurisdictions—but those cases are

distinguishable in that the arbiter had no personal stake in the outcome of the decision and/or

did not recuse from participation in the decision-making process.1 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


       1
         E.g. Madden v. U.S. Assocs., 40 Ark. App. 143, 844 S.W.2d 374 (1992) (affirming
circuit court’s reversal of revocation of registration and licenses because appellees had no fair
hearing where agency’s hearing officer had ex parte discussions with department
representatives); In re Murchison, 349 U.S. 133 (1955) (reversing and holding denial of due
process for Michigan Supreme Court to uphold convictions where same judge that presided
at contempt hearing had also served as the “one-man grand jury” out of which contempt
charges arose); Gibson v. Berryhill, 411 U.S. 564 (1973) (vacating and remanding but holding
that Alabama’s Three-Judge District Court was warranted in concluding that board members’
pecuniary interest disqualified them from passing on issues); Borough of Youngsville v. Zoning
Hearing Bd. of Borough of Youngsville, 450 A.2d 1086 (Pa. Commw. Ct. 1982) (holding reversal
not necessary on basis that board member should have disqualified himself from participating
in the decision because it was not alleged that member controlled or unduly influenced other
board members on their votes); Antoniu v. S.E.C., 877 F.2d 721 (8th Cir. 1989) (nullifying
SEC proceedings against Antoniu where commissioner who participated in decision to
permanently bar Antoniu from employment in securities business had given speech outlining
Antoniu’s case and labeling him a violator); Ark. Racing Comm’n v. Emprise Corp., 254 Ark.
975, 497 S.W.2d 34 (1973) (affirming circuit court’s finding under APA that commissioner
was disqualified from participating in hearing on revocation of franchise where his comments
to the public could be seen as unfavorable to one side); Bove v. Bd. of Review of City of
Newport, 185 A.2d 751 (R.I. 1962) (nullifying board action where chairman disqualified
himself, requested alternate member serve as active member in his place, and did not vote but
stated that he would participate “to such extent as may be required in the conduct of this
hearing” because statute provided for hearing before five members, not six).

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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.

       Moreover, 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.2 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. The Lewises do not argue that

they failed to receive a fair trial in circuit court or were denied due process when they were

afforded a new trial.

       Affirmed.

       WOOD and BROWN, JJ., agree.

       William R. Mayo, for appellants.

       Clark & Spence, by: George R. Spence, for appellee.


       2
           Black’s Law Dictionary 1645 (9th ed. 2009).

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