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Hardy city limits under question

Thursday, January 5, 2006

City officials scramble to figure out what to do about errors in 1999 annexation

Just where do Hardy's city limits begin and end? That's the question city officials have been pondering in reviewing errors made when the city annexed property in late 1999.

Residents of Hardy went to the polls in December of 1999 and approved the annexation of 1,260 parcels of land into the city limits, said Sharp County Assessor Kathy Nix. In 2000, when the annexation went into effect, the land assessed for $1,567,200, she said. Based on the city millage at that time, the city collected $4,544 in additional property taxes from the growth of the city, she said.

The problem is that what was actually added to the city limits isn't what was originally intended.

Despite the public vote, the city ordinance permitting the annexation had been drafted and recorded long before the vote, said Mayor Louie Seibert. The description of the land to be annexed was correct in the ordinance but wasn't correct on the ballots, he said. A map at the precinct showing what the annexation was to encompass was correct, however.

"It got changed before it was voted on," Seibert said, adding that he didn't know how the land description was changed.

The problem went unnoticed for years. Nix went by the ballot language and the annexation order signed by the judge.

"What their intent was not what was recorded," she said. "I have to go by what is filed on record."

The issue wasn't brought up until 2003 after Biggers Bluff Bed and Breakfast changed hands. If the annexation had gone through as the city anticipated, the property would have been included in the city limits.

Owners David and Valerie Bathrick had been collecting the city's 1.875-percent advertising and promotion tax on food and lodging without a hitch since they opened their business until they purchased a vehicle from an estate sale in early 2003. When David Bathrick went to title the vehicle he learned his property wasn't in the city.

"The assessor's office said, 'You aren't in the city limits and never have been,'" Bathrick said. "I haven't paid any hamburger tax since then. I told the mayor and the council I don't mind paying the city hamburger tax or the sales tax but I want city services if I do."

The couple retained attorney Mark Johnson, now Sharp County District judge, to prove they weren't in the city limits.

"Mark said there's something like 10 things you have to do in an annexation and Louie did about three," Bathrick said.

Now city officials are scratching their heads trying to figure out what to do.

"That's one of those things we studied for a while and still really don't have an answer," said city attorney R.T. Starken.

Starken said the city could ask for an attorney general's opinion. There are no similar situations, Starken found.

"It's not something I can find a lot of guidance on in the code," he said. "I don't know if they could even appeal it. You're kind of left making an educated guess."

Seibert said former city attorney and current circuit judge Kevin King could review the issue for the council, adding that an amendment should solve the problem.

"A circuit judge would have the authority to unravel all this," Seibert said at the Dec. 20 council meeting. As of Dec. 30 Seibert had not contacted King adding that he was waiting on a report from a local surveyor.

King said the city could not amend the vote.

"As best as I can remember, it was never intended to include it (Biggers) because of the services," King said. "They didn't feel they could afford it at the time."

Don Zimmerman, executive director of the Arkansas Municipal League, said an amendment may not work. He thinks the city would have to hold another election to change the annexation.

"For my records, if I got an amended legal description that would be fine," Nix said. "For them, I told them they should consult the Municipal League and their city attorney."

Hardy charges five mills on property tax on personal and real property within the city. They also collect 1 percent sales tax from businesses and the advertising and promotion tax.

Bathrick said he has not received the money his business paid to the city and isn't too worried about it.

"I, personally, wasn't out anything. It was the customers," he said.

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