United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-3191

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Jason B. Aamodt; Maria B. Aamodt, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the 

* Western District of Arkansas.

The City of Norfork, Arkansas, *

*

Defendant - Appellee. *

*

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Submitted: February 8, 2012

 Filed: June 25, 2012

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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

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BENTON, Circuit Judge. 

Jason B. Aamodt and Maria B. Aamodt sued the City of Norfork, Arkansas, to

enjoin the application of a 2008 zoning ordinance. They also requested records under

the Arkansas Freedom of Information Act. The district court1

 granted summary

judgment to the City. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. 

1

 The Honorable P.K. Holmes, III, United States District Judge for the Western

District of Arkansas. 
This court reviews de novo a grant of summary judgment. Torgerson v. City

of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Viewing the facts most

favorably to the nonmoving party with the benefit of all reasonable inferences,

summary judgment should be granted when the record shows no genuine issue of

material fact, and that the moving party is entitled to judgment as a matter of law. 

Southeast Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 611-12 (8th Cir. 2011). 

I. 

The Aamodts challenge a 2008 ordinance prohibiting the short-term rental of

their property. This ordinance was not filed with the County Recorder (unlike other

City zoning ordinances), but was filed with the City clerk. The Aamodts claim this

violates the City’s 1995 zoning ordinance, which states: 

Article 06.01.03 Legislative Body Authority 

. . . .

(B) Procedures for amendments 

After adoption of plans and ordinances and regulations, and proper filing

in the offices of the Recorder and the Recorder of the Deeds of Baxter

County, no alteration, amendment, extension, abridgment, or

discontinuance of the plans or ordinance may be made except in

conformance with the above procedure, or by a majority vote of the

council. [Arkansas Statute 19-28301].

The citation to “Arkansas Statute 19-28301" apparently refers to Arkansas Stat. 19-

2830(b) (Repl. 1985), which is now Arkansas Code § 14-56-423 (1987): 

After adoption of plans, ordinances, and regulations and proper filing in

the offices of city clerk and county recorder, no alteration, amendment,

extension, abridgement, or discontinuance of the plans, ordinances, or

regulations may be made except in conformance with the procedure

prescribed in § 14-56-422, or by a majority vote of the city council.

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The City’s article 06.01.03(B) mirrors Arkansas Code § 14-56-423. The

Arkansas Supreme Court has held that § 14-56-423 authorizes a city council to change

a zoning ordinance with only a “majority vote of the city council,” without following

the procedure for adopting the original zoning plan. City of Russellville v. Banner

Real Estate, 933 S.W.2d 803, 805 (Ark. 1996). The Arkansas Supreme Court’s

interpretation of the statute is binding in this diversity case. Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 79 (1938). The Arkansas Supreme Court would interpret the

City’s ordinance using the same principles it applied to the statute. Taggart &

Taggart Seed Co. v. City of Augusta, 647 S.W.2d 458, 459 (Ark. 1983). It is

undisputed that the City passed the 2008 ordinance by a majority vote. The 2008

ordinance is valid. 

The dissenting opinion relies on another subsection of the 1995 zoning

ordinance—article 06.01.03(A)—which requires that a zoning plan be filed with the

County Recorder. In a case involving the parallel state statute, however, the Arkansas

Supreme Court held that an amendment to a zoning plan, like the one in this case,

requires only a “majority vote of the city council.” City of Russellville, 933 S.W.2d

at 805. An amendment does not require compliance with the procedures in the zoning

plan subsection.2

 Id.

II. 

On appeal, the Aamodts assert that the 2008 ordinance is invalid because it does

not contain a map. First, their complaint makes no such claim, and the district court

did not rule on it. See Cole v. UAW, 533 F.3d 932, 936 (8th Cir. 2008); Barham v.

Reliance Standard Life Ins., 441 F.3d 581, 584 (8th Cir. 2006). At any rate, the

authority they cite applies only to a “comprehensive zoning ordinance” affecting the

2

The dissenting opinion also raises issues of equity and practicality, which are

best left to the state legislature and the city council.

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“entire area of the municipality.” See Osborne v. City of Camden, 784 S.W.2d 596,

597 (Ark. 1990), and Craft v. City of Fort Smith, 984 S.W.2d 22, 25-26 (Ark. 1998),

interpreting Ark. Code Ann. § 14-56-416 (1987). The 2008 ordinance was not a

comprehensive ordinance affecting the entire area of the City.

On appeal, the Aamodts also argue that the district court interpreted the AFOIA

in violation of the Privileges and Immunities Clause of the United States Constitution. 

Compare Lee v. Minner, 458 F.3d 194, 201 (3d Cir. 2006) (the citizens-only scope

of the Delaware FOIA violates the Privileges and Immunities Clause), with McBurney

v. Young, 667 F.3d 454, 467 (4th Cir. 2012) (the citizens-only scope of the Virginia

FOIA does not violate the Privileges and Immunities Clause). 

In their complaint, the Aamodts requested “compliance with the Arkansas

freedom [sic] of Information Act,” and that “the defendant immediately produce all

the documents requested in compliance with the Arkansas Freedom of Information

Act.” The complaint, in its AFOIA claim, does not refer in any way to the

Constitution. The district court also did not mention the Constitution in interpreting

the AFOIA and ruling that the Aamodts lacked standing. 

Because the Aamodts did not assert this constitutional claim in the district

court, they cannot raise it on appeal. United States v. White Plume, 447 F.3d 1067,

1074 (8th Cir. 2006); Kosulandich v. Survival Tech., Inc., 997 F.2d 431, 433 (8th

Cir. 1993). 

* * * * * * *

The judgment of the district court is affirmed. 

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SHEPHERD, Circuit Judge dissenting in part.

I agree with the majority that the Aamodts did not properly raise the AFOIA

claim or the claim that the 2008 Ordinance is invalid because it did not contain a map. 

However, because I find that the City failed to properly file the 2008 zoning change

in the public record as required by City ordinance, I would reverse.

In 2009, the Aamodts set out to purchase a second home along the banks of the

North Fork River in Norfork, Arkansas. To offset the costs of upkeep for the home,

the Aamodts intended to rent the property to friends and fishermen for short-term

stays. Before purchasing their home, the Aamodts reviewed all zoning ordinances on

file with the County Recorder3

 and found no zoning restrictions prohibiting short-term

rentals. The Aamodts purchased their home without knowledge of the 2008

Ordinance, which prohibits owners from using their property as short-term rentals in

the zone where the Aamodts’ home is located. After learning of the 2008 Ordinance,

the Aamodts brought this action seeking to have the 2008 Ordinance declared invalid. 

The majority focuses its brief analysis on whether the majority vote of the

Norfork City Council validly adopted the 2008 Ordinance. The majority, however,

fails to consider the gravamen of the plaintiffs’ complaint and briefs: whether the City

properly filed the 2008 Ordinance in the records of the County Recorder of Deeds

after it was passed, as required by the City’s own procedures. I agree with the

majority that the 2008 Ordinance was properly passed by the City Council. However,

I would find that the City failed to follow its own procedures by not filing the 2008

Ordinance with the County Recorder. Because Arkansas law requires cities to

substantially comply with their own ordinances and the City of Norfork failed to do

so, I would reverse.

3

In Arkansas, the County Recorder is the Circuit Clerk. Ark. Code Ann. § 14-

14-502(b)(2)(A)(vii). 

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Article 06.01.03(A) of the 1995 zoning Ordinance of the City of Norfork

outlines the “[m]andatory procedures for adoption and filing” of zoning plans.

(emphasis added). Pursuant to the Article, “[f]ollowing adoption of plans and

ordinances by the legislative body (Council), the adopted plans, ordinances and

regulations shall be filed in the office of the Recorder . . . .” Article 06.01.03(A)(2)

(emphasis added). The majority ignores this section of the 1995 Ordinance and

instead focuses on the section of Article 06.01.03 that addresses the procedure through

which amendments may be enacted. 

The majority is correct in its observation that an amendment to an ordinance

may be enacted through majority vote of the City Council. However, this does not

end the inquiry. 

The portion of the 1995 Ordinance that addresses filing applies to the filing of

amendments as well as new ordinances. In my view, this interpretation of the statute 

is required by the article’s plain language, and for that reason I would reverse. See 

Carmical v. McAfee, 7 S.W.3d 350, 357 (Ark. Ct. App. 1999) (“Where the language

of a statute is plain and unambiguous, we determine legislative intent from the

ordinary meaning of the language used.”). Alternatively, even if the 1995 Ordinance

were ambiguous as to the proper procedure for filing amendments, filing of the 2008

Ordinance with the County Recorder would still be required. “[Z]oning ordinance[s],

being in derogation of common law, must be strictly construed in favor of the property

owner.” Rolling Pines P’ship v. City of Little Rock, 40 S.W.3d 828, 832 (Ark. Ct.

App. 2001).4

Having chosen to impose a filing restriction on itself by requiring that zoning

plans be filed with the County Recorder, “the [C]ity must abide by its own decisions. 

4

I note that we learned at oral argument that multiple other amendments were

on file with the County Recorder, indicating the City itself has previously interpreted

the ordinance as requiring filing with the County Recorder. 

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A city’s failure to substantially comply with the procedural requirements” of its own

ordinances renders the ordinance invalid. City of Fordyce v. Vaughn, 781 S.W.2d 6,

9 (Ark. 1989). Here, the City did not substantially comply with its filing

requirements. Though it filed the 2008 Ordinance with the City Clerk, it did not also

file the Ordinance with the County Recorder. The district court, in finding that the

City substantially complied with its own procedure by filing the 2008 Ordinance with

the City Clerk, relied on Osborne v. City of Camden, 784 S.W.2d 596 (Ark. 1990). 

In Osborne, the Supreme Court of Arkansas determined that the City substantially

complied with a requirement that it file ordinances with the City Clerk when it filed

instead with the City Planner. Id. at 598. The court noted “[t]he City Planner’s officer

[did] not have an outside door, and entry into the office [was] through the City Clerk’s

office. When citizens went to the clerk’s office and asked for a zoning map they were

referred into the planning office. Thus, there was substantial compliance with the

statute.” Id. In this case, the City of Norfork presented no evidence that parties

looking for zoning ordinances in the Recorder’s office were directed to the City Clerk. 

The 1995 Ordinance informed future purchasers that zoning restrictions could

be found at the office of the County Recorder. The Aamodts, taking the City at its

word, checked with the County Recorder, as would any Arkansas title examiner, and

discovered no short-term lease restrictions on the to-be-purchased property.5

 Though

the Aamodts took care to ensure that they were not purchasing a home that was

subject to a short-term rental restriction, they now own a home that they cannot use

as they intended to use it because of a zoning ordinance of which they had no notice

because it was not properly filed. To find for the City in this case allows the City to

disregard its own filing procedures without consequence. 

5

Pursuant to Arkansas law, the Recorder has the duty to record all instruments

concerning land “that are authorized to be recorded in his or her office.” Ark. Code

Ann. 14-15-402(a). Filing with the County Recorder gives the public constructive

notice of the instrument. Ark. Code Ann. § 14-15-404(a). 

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Finding the City failed to comply with its own filing procedure, I would find

the 2008 Amendment unenforceable, and I would reverse.

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