## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 11-3191

___________ 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. *
*

___________ Submitted: February 8, 2012 Filed: June 25, 2012

___________ Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

___________ 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 Informa tion Act. The district court 1 granted summary judgment to the City. Having jurisdiction under 28 U.S.C. § 1291, th is court affirms.

1 The Honorable P.K. Holmes, III, United St ates District Judge for the Western District of Arkansas.This court reviews de novo a gr ant 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 f iled with the County Recorder (unlike other City zoning ordinances), but was filed withthe 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 ordinan ces and regulations, and proper filing in the offices of the Recorder and the Recorder of the Deeds of Baxter County, no alteration, amendmen t, extension, abridgment, or discontinuance of the plans or ordinance may be made except in conformance with the above procedur e, 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 disconti nuance 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.

-2-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 vot e 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 princi ples 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)—w hich requires that a zoning plan be filed with the County Recorder. In a case involving the para llel 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 vot e of the city council.” City of Russellville , 933 S.W.2d at 805. An amendment does not require complian ce with the procedures in the zoning plan subsection. 2 Id.

II.
On appeal, the Aamodts assert that th e 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 z oning 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.
-3-“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 affecti ng 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 Immunitie s 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 requ ested “compliance with the Arkansas freedom [sic] of Information Act,” and th at “the defendant immediately produce all the documents requested in compliance withthe Arkansas Freedom of Information Act.” The complaint, in its AFOIA cl aim, 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.

-4-SHEPHERD, Circuit Judge dissenting in part.

I agree with the majority that the Aa modts 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 purchas e 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 Recorder 3 and found no zoning restrictions prohibiting short-term rentals. The Aamodts purchased their home without knowledge of the 2008 Ordinance, which prohibits owners from usi ng their property as short-term rentals in the zone where the Aamodts’ home is locat ed. 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 plain tiffs’ complaint and briefs: whether the City properly filed the 2008 Ordinance in the r ecords of the County Recorder of Deeds after it was passed, as re quired by the City’s own procedures. I agree with the majority that the 2008 Ordinance was prope rly 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 ordina nces 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).
-5-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 Artic le, “[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 observati on that an amendment to an ordinance may be enacted through majority vote of th e City Council. However, this does not end the inquiry.

The portion of the 1995 Ordinance that a ddresses 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, a nd for that reason I would reverse. See Carmical v. McAfee , 7 S.W.3d 350, 357 (Ark. Ct. A pp. 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 s till 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 restri ction 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 argumen t that multiple other amendments were on file with the County Recorder, indicating th e City itself has previously interpreted the ordinance as requiring filing with the County Recorder.
-6-A city’s failure to substantially comply w ith the procedural requirements” of its own ordinances renders the ordinance i nvalid. 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 Ordinan ce 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 ow n 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 dete rmined that the City substantially complied with a requirement that it file ordi nances 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 in to 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 purch asers that zoning restrictions could be found at the office of the County Recorder . The Aamodts, taking the City at its word, checked with the Count y 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 th ey 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 z oning ordinance of which they had no notice because it was not properly filed. To find fo r 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 r ecorded in his or her office.” Ark. Code Ann. 14-15-402(a). Filing with the Count y Recorder gives the public constructive notice of the instrument. Ark. Code Ann. § 14-15-404(a).
-7-Finding the City failed to comply withits own filing procedure, I would find the 2008 Amendment unenforceable, and I would reverse.

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