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Monday, May 20, 2024

Property Owner Responds to Threat of Civil Litigation by City


During a March 2 meeting of the Greenwood Parks Commission, members voted unanimously to proceed with civil litigation against a property owner on Mount Harmony Road for cutting a 20-foot wide swath of trees from their property to the Greenwood City Lake.

According to the minutes of that meeting, the commission chair read the following excerpt from the city ordinance regarding the damage, destruction, or mutilation of any tree in a public right-of-way or on other public grounds: “any person violating the provision of the ordinance shall be, upon conviction or plea of guilty, subject to fine not to exceed $500 for each separate offense.”

Tammy Briley, the Parks Director for the City of Greenwood, informed the commission that all of the trees damaged, including saplings, would be counted.

The damage took place on the upper loop of the east side trail at Greenwood City lake. “An adjacent property owner to the upper trail off Mount Harmony Road cut an approximately 20 foot wide clear cut swath from their property across the upper trail to below the lower trail all the way to the lake.”

Because the property owner cut a path through city property, the city is seeking to recuperate damages. According to City Attorney Mike Hamby, there is an Arkansas Statute stating that if one wrongfully cuts another’s timber, that individual is entitled to treble damages, therefore three times the amount. Briley provided Hamby with an estimate from Sharum’s Garden Center in Fort Smith totaling $10,499.75. “…So this would be multiplied times three, per the statute, which would be what the city would be entitled to, plus a discretionary award of attorney’s fees.” The public record of the meeting went on to state that Hamby did not believe the city ordinance could be enforced because, although it was city property, it was not inside of the city limits at the time of the violation.

Property owner, Kathy Shepard, made an offer of $3,000 to the city in an attempt to provide restitution for damages. According to her, she also takes responsibility for her actions. “…The property owner had hired an individual to do some yard cleaning, and….claims she did not authorize it, but knows it is her fault.”

The matter currently remains under investigation by the Arkansas Forestry Department.

According to Arkansas Code under civil action 18-60-102, injuring, destroying, or carrying away property of another: "A person trespassing as follows shall pay a person injured treble the value of a thing damaged, broken, destroyed, or carried away, with costs, if the person shall: (1) Cut down, injure, destroy, or carry away any tree placed or growing for use or shade or any timber, rails, or wood, standing, being, or growing on the land of another person...(b) If any person trespasses upon land in violation of the provisions of this section and if the land is owned by several joint tenants, tenants in common, coparceners, or other co-owners, then any co-owner who has not given consent to the trespass shall be entitled to treble the value of the thing so damaged, broken, destroyed, or carried away, with costs, the treble damages to be computed according to the amount of the undivided interest of the co-owner. (c) If on the trial of any action brought under the provisions of this section it shall appear that the defendant had probable cause to believe that the land on which the trespass is alleged to have been committed, or that the thing so taken, carried away, injured, or destroyed, was his or her own, the plaintiff in the action shall recover single damages only, with cost."
Additionally, Arkansas Code under criminal action, 5-38-203, criminal mischief: "(a) A person commits the offense of criminal mischief in the first degree if he or she purposely and without legal justification destroys or causes damage to any: (1) Property of another; or (2) Property, whether his or her own or property of another, for the purpose of collecting any insurance for the property...(c) In an action under this section involving cutting and removing timber from the property of another person: (1) The following create a presumption of a purpose to commit the offense of criminal mischief in the first degree: (A) The failure to obtain the survey as required by § 15-32-101; or (B) The purposeful misrepresentation of the ownership or origin of the timber; and (2) (A) There is imposed in addition to a penalty in subsection (b) of this section a fine of not more than two (2) times the value of the timber destroyed or damaged. (B) However, in addition to subdivision (c)(2)(A) of this section, the court may require the defendant to make restitution to the owner of the timber..."

Shepard moved into the home located on Mount Harmony Road in the summer of last year. “The property needed a lot of clean-up when I looked at it. In fact, I asked that some of it be cleaned before we closed,” Shepard stated. She went on to add that moving into a rural area outside of town was important to her as she raised her kids. “I wanted my children to be around a natural setting, have room to run around, to hear the crickets, and learn about raising chickens and working in a garden. I wanted them to know the joy of reaping the rewards that come from hard work…”

Because of the unkempt land, Shepard was concerned about the conditions, particularly when her chickens were being killed by wildlife dwelling in the cluster of wooded debris in the area. “I fell in love with this place, I sincerely love the beauty, nature, and the view of the ridge…I only wanted to clean up the trash and debris…an old well-pump, toilet, and old traps…”

The landowner went on to add that she was unaware of where her property lines were as some clearing had been done previously. She described it as a “horrible, horrible situation.” Adding that it was “miscommunication regarding the direction of cutting some trees…”

An agent with the Department of Agriculture made contact with Shepard regarding the complaint by the city. Shepard took full responsibility and was compliant with his request to stop any cleaning and or clearing until the issue had been settled.

Shepard stated that she is proud to live in the Greenwood community, and is particularly impressed with her children’s school. However, Shepard stated she now feels “bullied.”

Kathy Shepard submitted the following statement to the Greenwood Resident:

The Department of Agriculture agent that came out to advise me that what I had done wasn’t right, was kind and respectful. But yesterday (Tuesday, March 9), at approximately 4:30 p.m., a woman came up the hill from the trail while I was standing outside on my patio. She began waving a paper at my face that she said she had found on the internet regarding my property lines.
She yelled at me and said that she ran the park service for the City of Greenwood. I was a victim of her bullying attacks and angry interaction for an hour and a half. She wanted to know what kind of mother would bring kids up out here. The woman exclaimed that I would be hearing from their attorney and that they were coming after me for every single twig.
She further proceeded to tell me that the city had a special relationship with the previous owner. That he had cut the grass around the lake at the end of his access road, which he left open. I told her I had mowed and kept up the area by the lake as well, and that my family and I pick up trash along the highway, including what is left behind by hikers, campers, and fishermen. She replied, her boys, while upset the fence would be shut, could use the smaller access area and that I needed to keep my fence locked and put up no trespassing signs. At this point, it became painfully apparent to me that ‘special relationship’ involved the previous owner doing whatever he wanted with his trash on the city’s property or fishing with traps in the lake in exchange for the unlimited use of his access road.
I did not mean to insult the city with the offer of $3,000, as I and did not know what the value of the four mature oak trees and saplings were. I don’t know how it escalated to it, but she scoffed at the $3,000 and said try $300,000. By the time she left, she had cooled down, but it was shocking to see this type of behavior from a city employee.
She wants to run us (the family) out by means of intimidation because we are not your typical home. I don’t golf or socialize with the right people, or perhaps my life does not fit her ideal Greenwood resident family profile, but I do want to be a good neighbor.

Shepard concluded that in addition to the financial restitution she has offered to replant trees and perform community service, but the offers were rejected.

On Wednesday, March 10, Shepard went to visit with the mayor about the issue, however, he was unavailable. “I need to face him and I wasn’t able to see him, but I will keep trying.”

Shepard stated she has filed a report with the Sebastian County Sheriff’s Office regarding the March 9 interaction, which she describes as “harassment and an abuse of power.” Additionally, that she is retaining legal counsel regarding the entire matter.

Parks Director Tammy Briley stated the city is letting their attorney handle the correspondence. “I just hope no one else decides to do that. It is a black eye on the natural preservation of the land and it will take at least 30 years for it to grow back.” She added that there will be a lot of manpower involved in the upkeep and establishment of replanted trees. “It’s just sad to me that someone would think that was ok,” Briley concluded.

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