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CITY OF BARLING v. FORT CHAFFEE REDEVELOPMENT12/6/2001
entity situated within its municipal boundaries yet not subject to its municipal laws. FCRA responds by noting that, because Barling's authority over zoning is entirely due to the grant of that authority by the State, the city should not be heard to complain when the State "proposes to share
power inter-locally with other cities via a binding trust, and the legislature endorses [the City's] binding contract to do so."
When Barling, the other cities, and Sebastian County signed the Trust Indenture, they agreed that they could not, by themselves, manage the conversion of the property from a former military base into an economically viable and prosperous community. Therefore, the Trust was created and given the authority to regulate the use of the land in order to achieve that goal. The Public Trust, created under the provisions of § 28-72-201 et seq., was then endorsed by the Legislature in § 12-63-103, which acknowledged the authority of the FCRA to own, operate, and manage the property. Nevertheless, Barling asserts that the Trust Indenture was "nothing more than an indenture designed to permit the FCRA to go about its business of receiving the federal surplus property, and develop it according to law as with any other developer of a large parcel of property." This, however, ignores the fact already discussed above that when Barling signed the Trust Indenture, it granted the FCRA the authority to own, operate and manage the land, as well as the explicit power to "adopt, amend, and repeal . . . land use regulations." This authority to define land use regulations was specifically approved by the General Assembly in § 12-63-103, and thus we conclude that Barling unquestionably agreed to cede a portion of the authority granted to it by the State when it signed the indenture.
For its final point on appeal, Barling asserts that the trial court erred when it concluded that the affidavits of Jimmy Hicks, Randy Coleman, and Phillip Reeves, who participated in preparing the Reuse Plan, were "uncontroverted," and that these affidavits supported the conclusion that Barling's zoning ordinances irreconcilably conflicted with the Plan. Further, Barling asserts that the trial court failed to take into account the intent of the General Assembly, the FCRA, or the City of Barling as reflected in the affidavits of Richard Haberman and Jack Yates, Barling City Administrators, who both asserted that they had met with representatives of the FCRA and that those representatives offered assurances that they recognized Barling as the entity responsible for zoning.
In an order dated February 8, 2001, denying Barling's motion for reconsideration, the trial court noted that it considered the affidavits of Haberman and Yates, but it did not find them to raise a genuine issue of material fact. Further, the court noted that both
parties had declared that there were no factual issues to be considered, and that the questions presented to the court to resolve were legal in nature.
We are unable to reach the merits of Barling's argument, however, because the affidavits to which the city refers were not properly before the trial court. In this respect, the Haberman and Yates affidavits were attached as exhibits to Barling's brief in reply to FCRA's motion for summary judgment. These exhibits improperly raised new factual allegations and contentions for the first time. We do not consider such exhibits in our consideration of the propriety of summary judgment. Eldridge v. Bd. of Corrections, 298 Ark. 467, 768 S.W.2d 534 (1989).
We turn next to FCRA's cross-appeal, wherein the Trust argues that the trial court erred in ruling that FCRA's challenges to Barling's annexatio
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