Cite as 2024 Ark. App. 209



## ARKANSAS COURT OF APPEALS

DIVISION II No. CV - 21 - 282
MMSC, LLC APPELLANT

V.
WASHINGTON COUNTY, ARKANSAS; QUORUM COURT OF WASHINGTON COUNTY, ARKANSAS; JOSEPH K. WOOD, IN HIS OFFICIAL CAPACITY AS COUNTY JUDGE; DINAH DICKERSON; CAROLINE COX; STEPHENIE FOSTER; MARTY MATLOCK; AND THE HIGHLAND COMMUNITY ASSOCIATION APPELLEES Opinion Delivered March 27, 2024

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [ NO

. 72CV

- 19 - 1297 ]

HONORABLE JOHN C. THREET , JUDGE REMANDED

ROBERT J. GLADWIN, Judge This case involves the denial of a conditional
- use permit for surface mining in Washington County. In 2018, MMSC, LLC (“MMSC” or “appellant”) , applied for a conditional
- use permit to operate a red
- dirt mine on approximately twenty acres in Washington County. On February 14, 2019, the Washington County planning board denied MMSC’s conditional
- use permit. On April 18, 2019, the quorum court voted to affirm the planning board’s decision and memorialized that decision in an ordinance.2

MMSC appealed the quorum court’s action to the Washington County circuit court. At that point, Dinah Dickerson, Caroline Cox, Stephenie Foster, Marty Matlock, and the Highland Community Association moved to intervene, and the circuit court granted that

mo tion. On February 11, 2021, the circuit court held a final hearing in the matter and entered its final order on March 17, 2021. The circuit court ruled in favor of the appellees

— the quorum court and the intervenors

— holding that the decision to adopt an or dinance denying appellant’s request for a conditional
- use permit was not arbitrary, capricious, or unreasonable. The circuit court also held that Arkansas Code Annotated section 14
- 17 - 211 (Repl. 2013) is unconstitutional because it is a violation of the se paration - of - powers clause in the Arkansas Constitution. The appellant filed a timely notice of appeal , and t he electronic record was lodged on June 23, 2021. It is 7 , 091 pages. The first 61 pages are various motions, responses, and replies that are indivi dually bookmarked. The final 449 pages are also motions, responses, replies, orders, and letters that are individually bookmarked. The middle 6,581 pages are bookmarked simply as “Administrative Records Exhibit.”
T he 6,581 - page “Administrative Records Exh ibit” appears to include documents from the Washington County planning office and planning board, maps, e
- mails, deeds, and at least one affidavit. The documents are not bookmarked, nor is it clear what pleading or other portion of the record they are rela ted to

.3

Arkansas Rule of Appellate Procedure

– Civil 7(b)(1) requires that “ [t] he record shall be saved as searchable and bookmarked portable document format (PDF) files. Bookmarks shall be made to each document in the record and at the beginning of each wi tness’s testimony.” Last year, this c ourt remanded a case for additional factual findings. Duensing v. Ark

. State Med

. Bd. , 2023 Ark. App. 226, at 4

– 5, 666 S.W.3d 133, 136. At the end of the opinion , the c ourt noted that pages 11 through 457 of the electronic record includes the transcript from the Board hearing. However, none of the documents or testimony are bookmarked, and the documents do not appear in any type of order. Before a subsequent appeal, we urge the parties to review the rules on electronic records and record contents

. . . . [A]nd counsel should carefully review the rules and ensure no other deficiencies exist.
Id. at 7, 666 S.W.3d at 138. The same deficiencies are present in this electronic record but on a larger scale . Pages 62 through 6,642 are not bookmarked, and the documents do not appear in any type of order. For this reason , we remand this case to correct the electronic record. The electronic record must comply with Rule 7(b)(1) and b e refiled within sixty days. Remanded.
H ARRISON , C.J. , and T HYER , J. agree. Friday, Eldredge & Clark, LLP , by: Joshua A. Ashley , Kael K. Bowling , and Martin A.
Kasten , for appellant.4

Noland Law Firm, PA , by: Ross Noland ; and Brian Lester and Garrett Harlan , Washington County Attorneys, for appellees.