Harris v. City of Little Rock

DONALD L. Corbin, Justice.

This is a suit brought by a taxpayer, Appellant Nora Harris, against Appellee City of Little Rock, challenging the city’s issuance of revenue bonds that will, in part, finance the acquisition of land for the William Jefferson Clinton Presidential Park. On March 17, 1998, the city, through its board of directors, passed Ordinance No. 17,690, authorizing the city to issue and sell capital-improvement revenue bonds in the amount of $16,500,000 to fund park and recreational improvements. In addition to the Presidential Park, the bonds would also provide improvements to the city’s zoo and its three public golf courses. Appellant challenged the ordinance under Amendment 65 to the Arkansas Constitution on the grounds that it pledged as repayment user fees other than those generated from the particular projects being funded by the bonds, and that it indirectly pledged tax revenues as repayment. Appellant also contended that an illegal exaction had occurred when the city increased the user fees at its recreational facilities. The Pulaski County Chancery Court disagreed with Appellant on all points and entered judgment in favor of the City. Appellant raises those same three arguments on appeal, which require us to interpret and construe Amendment 65 and the related statutes. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (b)(6). We affirm.

We note at the outset that we review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Id. We are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. With these standards in mind, we review Appellant’s arguments.

I. Repayment of Bonds by Project Revenues

. Appellant first argues that the Presidential Park will not generate revenues and that, therefore, the ordinance issued by the city fails to comply with the requirements of Amendment 65. Appellant asserts that Amendment 65 mandates that if user fees are pledged as repayment of revenue bonds, those fees must be generated by the particular project being funded. We disagree.

In interpreting the language of a provision of the Arkansas Constitution, we endeavor to effectuate as nearly as possible the intent of the people in passing the measure. Allred v. McLoud, 343 Ark. 35, 31 S.W.3d 836 (2000). Where the language of the constitutional provision is plain and unambiguous, each word must be given its obvious and common meaning. Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). “Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision.” Id. at 499, 966 S.W.2d at 231 (quoting Foster v. Jefferson County Quorum Court, 321 Ark. 105, 108, 901 S.W.2d 809, 810 (1995)).

Section 1 of Amendment 65 provides in part:

[A]ny governmental unit, pursuant to laws heretofore or hereafter adopted by the General Assembly, may issue revenue bonds for the purpose of financing all or a portion of the costs of capital improvements of a public nature, facilities for the securing and developing of industry or agriculture, and for such other public purposes as may be authorized by the General Assembly.

Section 3(a) defines the term “revenue bonds” as:

[A]ll bonds, notes, certificates or other instruments or evidences of indebtedness the repayment of which is secured by rents, user fees, charges, or other. revenues (other than assessments for local improvements and taxes) derived from the project or improvements financed in whole or in part by such bonds, notes, certificates or other instruments or evidences of indebtedness, from the operations of any governmental unit, or from any other special fund or source other than assessments for local improvements and taxes. [Emphasis added.]

Section 3(b) of Amendment 65 defines the term “governmental unit” as including any municipality and its agencies, boards, commissions, or other instrumentalities.

The Revenue Bond Act of 1987, enacted under Amendment 65, defines “bonds” or “revenue bonds” as “all bonds or other obligations, the repayment of which are secured by rents, loan payments, user fees, charges, or other revenues derived from any special fund or source other than assessments for local improvements and taxes[.]” See Ark. Code Ann. § 19-9-604(1) (Repl. 1998). Similarly, the Local Government Capital Improvement Revenue Bond Act of 1985, which was passed prior to Amendment 65, defines “revenues” as:

project revenues or any other special fund or source other than taxes or assessments for local improvements including, without limitation, any acquired with bond proceeds and the revenues to be derived from them, and any other user fees, charges or revenues derived from the operations of any municipality or county and any agency, board, commission, or instrumentality thereof]!]

See Ark. Code Ann. § 14-164-402(12) (Repl. 1998).

It is clear from the plain language of Amendment 65 and the foregoing statutes that revenue bonds may be repaid with rents, user fees, charges, or other revenues, other than tax revenues, derived from three sources: (1) the project or improvement financed by the bonds; (2) the operations of any governmental unit; or (3) any other special fund or source other than assessments for local improvement and taxes. Here, the city’s ordinance specifically provides that the bonds are not general obligations of the city, “but shall be special obligations payable solely from fees derived from the operation of the parks and recreational facilities owned or operated by the City[.]” The city’s Parks and Recreation Department is certainly an agency, board, commission, or instrumentality of the city. Thus, the user fees pledged to repay the bonds are revenues from the operation of any governmental unit. Accordingly, the ordinance is in compliance with Amendment 65.

II. Costs for Maintenance and Operation of the City’s Recreational Facilities

Appellant next argues that Ordinance No. 17,690 is unconstitutional because it indirecdy pledges tax revenues to repay the revenue bonds. This argument is premised on a provision in Section 2 of the ordinance, wherein the city has covenanted “to appropriate sufficient funds to insure the efficient operations and maintenance of the park and recreational activities of the City[.]” The exhibits offered below showed that the recreational facilities consistently operated at a loss. In other words, the user fees did not cover the expenses. The city has, however, historically made up the difference from its general revenues. Appellant asserts that by pledging the facilities’ user fees to repay the revenue bonds, the city will have to contribute even more money from its general revenues to insure the efficient operations and maintenance of the facilities for the life of the bonds, which extend through the year 2023. Thus, Appellant argues, by using general revenues to subsidize these parks, while the user fees are pledged to repay the bonds, the city is circumventing the prohibition in Amendment 65 that revenue bonds may not be repaid from taxes.

The City, on the other hand, argues that Amendment 65 prohibits it from pledging general revenues, or taxes, to repay the revenue bonds, but does not prohibit it from using general revenues to fund the operation and maintenance of its parks and recreational facilities. The City relies on the holding in Rankin v. City of Fort Smith, 337 Ark. 599, 990 S.W.2d 535 (1999). There, the appellants argued that the city had illegally exacted funds from its general revenues to help pay for bonds issued by the city for the construction of a parking deck. The appellants sought to establish the existence of an illegal exaction by alleging that the city unlawfully used its general funds to pay revenue-bond indebtedness in violation of Amendment 65. The appellants contended that the revenues were transferred to the parking deck’s fund specifically to meet alleged shortfalls in the fund’s debt-service obligation for the revenue bonds. The city, however, produced an affidavit demonstrating that for each year in question, the parking facilities’ revenues exceeded the debt-service obligation. This court affirmed the ruling in favor of the city based on the appellants’ failure to offer countervailing proof. Here, the City asserts that Rankin is determinative of the issue at hand. We disagree.

The issue in Rankin concerned the allegation that the city was directly paying its debt-service obligation for the parking deck with general revenues. The appellants argued that the city had taken money from its general funds to make up shortfalls on the debt-service obligations. Clearly, Amendment 65 forbids such action. Rankin did not, however, involve the allegation that the city was indirectly paying debt service with general revenues by making up shortfalls in the operation and maintenance of the parking facilities. That is the issue to be resolved here.

We believe that Amendment 65 prohibits a city from doing indirectly that which it cannot do directly. Because Amendment 65 forbids repaying revenue bonds with assessments from local improvements or taxes, it correspondingly forbids pledging tax revenues to fill the gaps left by using other sources of monies to repay the bonds. In short, using tax revenues to offset losses caused by pledging revenues from user fees to cover bond indebtedness is indirectly using tax revenues to secure repayment of the bonds, which is prohibited conduct. The question then is whether the city has done so in this case. Based on the record before us, we cannot say that it has.

The only evidence presented by Appellant on this issue came from City Manager Cy Carney. He testified that the city’s board of directors will make the decision as to whether and how the city will provide any additional funds to replace the user fees now pledged to the repayment of the bonds. Carney stated that he had asked the various department heads for recommendations as to how budget cuts could be made. Carney explained that he was considering proposing to the board that the shortfalls in the parks’ operation be made up by budgeting cuts, such as reducing salary expenses. Appellant’s attorney attempted a number of times, to no avail, to get Carney to state that the shortfalls would be supplied by the city’s general fund, which is mostly comprised of tax revenues. The City objected to that fine of questioning on the grounds that Carney had no authority to speak for the board, and that the decision as to whether and how to make the up the shortfalls would be up to the board. The chancellor sustained the City’s objections. Appellant’s attorney only succeeded in getting Carney to state, hypothetically, that if he were to make such a proposal to the board, it would involve monies from the general fund.

Appellant did not call any board members as witnesses, nor did she present any other proof on this issue. Indeed, she acknowledges in her brief that nothing in the ordinance, the bond documents, or the testimony given below identifies the source of the funds to be appropriated for the efficient operation and maintenance of the city’s parks. Appellant simply assumes that “[t]he reason the source is not identified is that there is only one such source - the General Fund.” This is an assumption that we are not willing or able to make. This court has consistently refused to issue advisory opinions based on facts not in evidence and events that have not yet occurred. See, e.g., Stilley v. Priest, 341 Ark. 329, 16 S.W.3d 251 (2000); Villines v. Harris, 340 Ark. 319, 11 S.W.3d 516 (2000). “[C]ourts do not sit for the purpose of determining speculation and abstract questions of law or laying down rules for the future conduct[.]” Baker Car & Truck Rental, Inc. v. City of Little Rock, 325 Ark. 357, 363, 925 S.W.2d 780, 784 (1996). We thus concur with the chancellor that “[t]he Court must base its findings on evidence admitted at trial, and not on assumptions as to what will happen in the future.”

To make a decision on this issue, we would have to assume that (1) the City’s recreational facilities will continue to operate at a loss, even after improvements to those facilities are made; (2) the City’s board of directors will elect to make up the difference in any shortfalls to insure the efficient operation and maintenance of the facilities; and (3) the shortfalls will necessarily be made up from funds derived from taxes. Moreover, we would have to speculate about the effect that periodic increases in the user fees would have on the recreational facilities’ revenues. Bryan Day, Director of the City’s Parks and Recreation Department, testified that effective January 1, 1998, the City had increased its user fees by $2.00 at the golf courses, the fitness center, and the zoo. The data presented below only went through 1997, the year before the increases took effect.

Appellant, as the complainant below, bore the burden of proving that Ordinance No. 17,690 is unconstitutional under Amendment 65. This court has long recognized that an ordinance is entitled to the same presumption of validity that legislative enactments receive. Lawrence v. Jones, 228 Ark. 1136, 313 S.W.2d 228 (1958) (citing Delony v. Rucker, 227 Ark. 869, 302 S.W.2d 287 (1957)). Thus, similar to a statute, an ordinance is presumed constitutional, and the burden of proving otherwise is upon the challenging party. See Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998); Laudan v. State, 322 Ark. 58, 907 S.W.2d 131 (1995); Board of Adjustment of Fayetteville v. Osage Oil & Transp., Inc., 258 Ark. 91, 522 S.W.2d 836, cert. denied, 423 U.S. 941 (1975). Where the complainant offers no proof to support the claim that the ordinance is unconstitutional, our inquiry is “limited to the face of the ordinance, with every presumption being in its favor.” Id. at 93, 522 S.W.2d at 838.

On its face, Ordinance No. 17,690 complies with the repayment provisions of Amendment 65. The ordinance reflects that the city “will pledge the fees from the park and recreational facilities owned or operated by the City more specifically defined hereinafter to secure the payment of the principal of and interest on the Bonds.” The ordinance reflects further:

The Bonds shall not be general obligations of the City, but shall be special obligations payable solely from fees derived from the operation of the parks and recreational facilities owned or operated by the City (specifically including, but not limited to, amounts deposited by the City into the enterprise funds for the zoo, golf, and War Memorial Fitness programs of the City established pursuant to Resolution No. 10,040 of the City adopted August 5, 1997), and any other fees designated and pledged by the City to such purpose [.]

The foregoing language demonstrates that the city has not pledged for repayment of the bonds any monies from taxes assessed or collected by the city. Furthermore, it is not evident from the city’s covenant to operate and maintain its parks and recreational facilities at efficient levels that the city has pledged or will otherwise be required to use general revenues to offset the lost user fees. Thus, the ordinance is not, on its face, in violation of Amendment 65.

Additionally, we point out that the covenant contained in the ordinance is only to provide sufficient funds to insure the efficient operations and maintenance of the city’s recreational facilities. The covenant does not specifically require the city to maintain those facilities at their current rate. Thus, it is speculation as to whether the city will need to increase the amounts that it currently provides to satisfy its covenant to insure the efficient operations and maintenance of the facilities. Accordingly, because this issue depends on 'a state of facts that is future, contingent, or uncertain, it would be premature and advisory to render a decision at this time. See Baker Car & Truck Rental, 325 Ark. 357, 925 S.W.2d 780. We note, however, that our opinion today should not be construed to prohibit Appellant from challenging any future action taken by the city that is inconsistent with this opinion.

III. Illegal Exaction

Lasdy, Appellant argues that when the City raised the user fees at its recreational facilities and pledged their proceeds to repay the bonds for the Presidential Park, an illegal exaction occurred. She argues that the increase in fees bears no relationship to the service provided, and that the fees are actually a tax that the City lacked the authority to impose without prior voter approval. We disagree.

“The distinction between a tax and a fee is that government imposes a tax for general revenue purposes, but a fee is imposed in the government’s exercise of its police powers.” City of Marion v. Baioni, 312 Ark. 423, 425, 850 S.W.2d 1, 2 (1993) (citing City of North Little Rock v. Graham, 278 Ark. 547, 647 S.W.2d 452 (1983)). A city may assess a fee for providing a service without obtaining public approval; however, a city cannot levy a tax unless it has received approval by the taxpayers. Barnhart v. City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995) (citing Ark. Code Ann. § 26-73-103(a) (1987)). A governmental levy of a fee, in order not to be denominated a tax by the courts, must be fair and reasonable and bear a reasonable relationship to the benefits conferred on those receiving the services. Id.; Baioni, 312 Ark. 423, 850 S.W.2d 1. The fact that the ordinance labels the exaction a “fee,” not a “tax,” is not binding; rather, we look to the true character of the levy to determine whether it is a fee or a tax. Id.

Here, the chancellor found that the increase in user fees is fair and reasonable and bears a reasonable relationship to the benefits given to those who pay the fees. First, the chancellor found that only those persons who use the park facilities pay the fees. Thus, only those who directly benefit from using the park services are required to pay for those services. Second, the chancellor found that the improvement bonds secured by the user fees will be used to fund improvements to those parks, again benefitting those persons who use the park services. Third, the chancellor found that, similar to the situation presented in Baioni, 312 Ark. 423, 850 S.W.2d 1, the fees will be deposited by the city into a separate enterprise fund used only for the benefit of its parks, not for general revenues.

Fourth, the chancellor found that the increases are fair and reasonable in light of the studies conducted by the city comparing its fees to those charged at similar facilities. The user fees for the fitness center were raised from $33.00 per month to $35.00 per month. In comparison, the fees for the YMCA were $46.00 per month, while those for a local gym were $90.00 per month. The fees for the city’s zoo were raised from $3.00 to $5.00, after comparing the fees charged in other zoos in the southern region, such as Atlanta and Memphis. Lastly, the fees for eighteen holes of golf at the city’s three courses were raised from $8.50 to $10.50 on weekdays, and from $10.50 to $12.50 on weekends. These fees were compared to those of $17.00 or $18.00 charged to play golf at the Country Club of Arkansas. The chancellor also noted that North Little Rock had similarly raised its user fees for its golf course at Burns Park. Accordingly, we cannot say that the chancellor erred in determining that the increase in user fees at the city’s recreational facilities is fair and reasonable and bears a reasonable relationship to the benefits conferred on those persons who use the facilities. We thus affirm the chancellor’s ruling on this issue.

Glaze, J., concurs in part; dissents in part. BROWN and Imber, JJ., concur. Norman Mark Klappenbach, Spl. J., concurs. Thornton, J., not participating.