Smith Auto Salvage et al. v. City of Pine Bluff, Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

SMITH AUTO SALVAGE, et al.

APPELLANTS

V.

CITY OF PINE BLUFF, ARKANSAS

APPELLEE

CA01-711

March 20, 2002

APPEAL FROM THE JEFFERSON COUNTY CHANCERY COURT

E-99-1525-1

HON. LAWRENCE D. DAWSON, JUDGE

AFFIRMED

This is an appeal from an order, entered on summary judgment, permanently enjoining appellants from operating a salvage yard at 1920 Blake Street in Pine Bluff, Arkansas. We affirm.

On September 13, 1999, the appellee, City of Pine Bluff (the City), filed a complaint for permanent injunction against appellants, Smith Auto Salvage Company, J.D. Smith Wrecking Company Inc., a/k/a Smith Wrecker Service, and Gary Don Smith, to enjoin them from operating an auto salvage yard at 1920 Blake Street based on a zoning violation. In their answer, appellants denied any zoning violation and affirmatively pled that the City approved their salvage activities at 1920 Blake Street and waived application of the zoning ordinance and was therefore estopped from enforcing the ordinance. The City filed a motion for summary judgment on September 8, 2000, which the trial court granted on January 22, 2001. A decree granting the permanent injunction was filed February 2, 2001. Appellant filed a timely notice of appeal on February 12, 2001.

The following facts are pertinent to this appeal: Appellant Gary Don Smith operated a salvage yard located at 9th and Blake Streets in Pine Bluff, Arkansas. On February 25, 1999, Smith sent a letter to Alderman Blunt, Mayor Taylor, and the Pine Bluff City Council, which read in pertinent part:

I respectfully request permission to move my business to 20191 Blake Street in Pine Bluff. I will clean up 9th and Blake Street. I agree to have the area cleaned up within 6 months. If I have not cleaned up the area as per our agreement you may proceed with litigation against me.

The March 1, 1999, minutes of the Pine Bluff City Council meeting indicate that Blunt made a motion, which was seconded by Alderman Dixon, to accept the letter from Smith and grant a six-month extension to clean up the area. Mayor Taylor asked Blunt if he also agreed to the issuance of a permit for Smith. After discussion, the motion and second were withdrawn. Blunt then made a motion, which was seconded by Dixon, to accept the letter from Smith requesting a six-month extension to clean up the area, with a monthly report from the zoning department. The motion passed 7-0. On March 2, 1999, Pine Bluff City Attorney, Carol Billings, mailed a letter to Smith stating,

In response to your letter of February 25, 1999, the City Council voted last night to grant you six months running from March 1, 1999, to clean up your salvage operations and other paraphernalia at 9th and Blake Streets and vicinity. This will forestall any legal proceedings against you or your business during this period for zoning violations at this general location. . . .

As part of this agreement, you will be required to let John Moore, head of our zoning department, [] videotape the current conditions of areas where you now store salvage materials. This videotape will need to be updated every 30 days . . . .

Smith purchased the 1920 Blake Street property for $250,000 on March 2, 1999, based on the March 1st vote.

The March 15, 1999, minutes of the city council meeting reflect that Alderman Kirby stated that in checking Smith's new location, he learned that no application had been filed with the Pine Bluff Planning Commission for a UPOR (Use Permit On Review). He agreed with the city councilthat the move was a good move, but he wanted Smith to halt the operation of the new business to allow input from neighbors in order to have due process carried out. Kirby made a motion to have Smith halt further activity until a UPOR had been approved by the planning commission. The motion was withdrawn after the city attorney informed the council that it could file an application for a UPOR and they agreed to this course of action. Subsequently, Smith filed an application on March 17, 1999, with the planning commission for a UPOR for a salvage yard at 1920 Blake. On April 30, 1999, Larry Woodrome, Director of Zoning and Inspection, sent a letter to Smith Auto Salvage stating that its application for a UPOR for 1920 Blake Street was incomplete and that it must cease placing automobiles on this property. Smith's application for a UPOR was denied by the planning commission on May 25, 1999, and he appealed to the city council. The city council rejected Smith's appeal by a 7-1 vote on June 21, 1999. On September 13, 1999, the City filed the complaint for permanent injunction.

The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Jackson v. Blytheville Civ. Serv. Comm'n, 345 Ark. 56, 43 S.W.3d 748 (2001). The evidence is viewed most favorably for the party resisting the motion, and any doubts or inferences are resolved against the moving party. Id.

The trial court, in its opinion granting summary judgment on the City's complaint for a permanent injunction, held that (1) the city council never granted appellants either "the relief or a permit to [appellants] to remove this auto salvage business from one location to the new location," and (2) even if it had, such action would have been "totally void and ineffective." Appellants make two arguments on appeal: (1) that the chancellor erroneously found that the city council did not, as an undisputed fact, grant Smith permission to move his auto salvage business to a new location, and (2) that the chancellor erroneously held that the city council lacked authority to grant Smith'srequest.

We agree with appellants' first argument that the chancellor erred in holding on summary judgment that the city council never granted either the relief or a permit to appellants to remove the auto salvage business from one location to the new location. Smith sent a letter to the city council requesting permission to move his salvage yard to the new location in exchange for cleaning up the old property. The March 1st city council minutes reflect that Alderman Blunt made a motion to accept Smith's letter and grant a six-month extension to clean up the area. The motion was withdrawn after Mayor Taylor asked Blunt if he also agreed to the issuance of a permit for Smith. The first motion was withdrawn and a second motion was made to accept Smith's letter requesting a six-month extension to clean up the area, with a monthly report from the zoning department. According to Smith's testimony at his municipal court trial on zoning violations,2 he was told by the person holding his earnest money for property at 1920 Blake Street that the City gave him permission to move. In addition, Smith testified that he called Alderman Dixon who told him, "Yes you do have permission." Further, the minutes of the June 21, 1999, city council meeting indicate, in part, as follows:

Unidentified: Who gave Mr. Smith permission to move to the other location?

Unidentified Alderman: We did. Gary Don Smith came to us with a written agreement, we agreed to it, we voted on it, and we allowed to let him move down there, and that's what he did in the process before we stopped it. The Planning Commission denied it, now its left on the council[']s back to cleanup their mess or face the fact that we gave him permission.

The issue of whether the city council granted appellants permission to relocate is clearly a disputed question of fact and is not a proper determination for summary judgment. However, our inquiry does not stop here because this factual dispute would not necessarily prevent summary judgmentif the city council was without authority to grant permission as the trial court also held.

In their second argument, appellants contend that the chancellor erroneously held that the city council lacked authority to grant Smith's request. The chancellor held that the Pine Bluff zoning ordinances were mandatory and not discretionary, and thus an applicant must first submit an application to the planning commission, who then must give required notices and conduct a hearing before action is taken. Appellants argue, based on Ark. Code Ann. § 14-56-423 (Repl. 1998), that this holding is contrary to the law. This section provides:

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.

(Emphasis added.) They contend that the city council had the authority to circumvent the application procedure provided for in the City ordinances because the city council could alter or amend the ordinances by a majority vote pursuant to § 14-56-423. This statute was amended in 1959 to add the majority-vote provision. They rely on City of Russellville v. Banner Real Estate, 326 Ark. 673, 933 S.W.2d 803 (1996), in support of their position.

The issue in Banner was whether the city council could adopt a rezoning ordinance that differed from one proposed by the city's planning commission. Under the facts of that case, the supreme court answered affirmatively. The court, citing Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983), stated that zoning authority must be exercised in accordance with both state and local law. The City of Russellville Zoning Ordinance 14593 provided that a petitioner seeking rezoning of property must prepare a petition and a plat map showing the location of the affected property, that notice must be sent to the owner of the property, that arezoning sign must be posted, and that a public hearing must be held before the planning commission. It further provided that after the hearing is held and the petition is reviewed by the planning commission, the city council may amend the zoning district boundary by passage of an ordinance by majority vote. The court concluded that the chancellor misapplied Ark. Code Ann. § 14-56-422 (which pertains to the adoption of plans, ordinances, and regulations), rather then applying § 14-56-423, which was controlling.

Unlike the facts of Banner, the Pine Bluff City Code did not contain a provision enabling the city council to amend the procedural requirements for obtaining a UPOR by a majority vote of the council. Rather, Pine Bluff City Code sections 29-114 and 29-37, attached to the City's motion for summary judgment, set out the detailed requirements for obtaining a UPOR. Section 29-114 covers property zoned as I-1, light industrial. Subsection (c) addresses uses permitted upon review and approval of the planning commission, stating that the planning commission "may impose special conditions relating to such considerations as the site plan, screening, or parking as a condition for approval of the following uses . . . for the protection of the public health, safety and welfare: (1) automobile salvage yard. . . ." Section 29-37(b) pertains to UPORs. It states:

It is declared that certain land uses and development presents [sic] unique problems with respect to their proper location and relationship to other land uses. Therefore, analysis and judgment of the consequence of each development and use is necessary to preserve and to promote the public health, safety, and general welfare. The following procedures are promulgated to govern the establishment of such developments and uses . . .

The procedure is very detailed (including requirements that an application be filed, that a public hearing be set, that notice of the hearing be given in a certain manner at least fifteen days prior to the hearing in the city newspaper and by a sign denoting that the UPOR request be posted on the property) and does not include a provision that the city council can grant a permit by majority vote. The planning commission is required to file a report with the city council granting or denying each application for a UPOR. Thus, even if the city council "accepted" Smith's letter, the acceptance wasinvalid because the city council did not adhere to its own procedural requirements contained in section 29-37. See City of Fordyce v. Vaughn, 300 Ark 554, 781 S.W.2d 6 (1989)(holding that where the city chose to create a planning commission or to delegate authority pursuant to its ordinances, the city must abide by its own decisions until such time as the ordinance is legally altered or repealed in accordance with the law). See also Mings v. City of Fort Smith, 288 Ark. 42, 701 S.W.2d 705 (1986); Potocki v. City of Fort Smith, 279 Ark. 19, 648 S.W.2d 462 (1983)(stating that a city's failure to substantially comply with the procedural requirements of enabling legislation renders a subsequent ordinance invalid); Taggart v. Taggart, supra.

Based on the foregoing, we cannot say that the trial court erred in determining as a matter of law that the city council was without authority to grant appellants permission to move the auto salvage yard. Appellants argue, however, that the city should be estopped by its acceptance of the cleanup and relocation proposal letter. While appellants raised the defense of estoppel in their answer and in their response to the City's motion for summary judgment, a review of the trial court's opinion and decree reveal that no ruling was obtained on this defense. Therefore, the point is procedurally barred. Sanders v. Bradley County Human Servs. Pub. Facility, 330 Ark. 675, 956 S.W.2d 187 (1997); see also Sturgis v. Skokos, 335 Ark. 41, 997 S.W.2d 217 (1998)(holding that where a party raises an issue in response to a motion for summary judgment but fails to obtain a ruling on it, review of that issue is precluded on appeal).

Affirmed.

Pittman, J., agrees.

Stroud, C.J., concurs.

John F. Stroud, Jr., Chief Judge, concurring. I concur because I agree with the majority holding regarding appellants' second argument that the city council lacked authority to grant appellants' request to relocate his salvage yard. Having reached that conclusion, I find itunnecessary to reach appellants' first argument that the chancellor erred in its finding on summary judgment that the city council granted a permit for appellant to move his auto salvage business from its current location to the new proposed location. If I were to reach that argument, however, I disagree with the majority opinion's holding that the issue of whether the city council granted permission was a disputed question of fact and not proper for summary judgment. I would conclude that the trial court did not err in that regard because the minutes of the meeting speak for themselves that the motion to authorize the relocation was withdrawn and that the subsequent motion deleting such authorization and addressing only the extension of time to

clean up the current location was passed. I do not think that the minutes of a subsequent city council meeting where an unidentified alderman states that the council agreed to the relocation creates a disputed question of fact when the minutes of the city council belie that fact.

1 The letter incorrectly states 2019 Blake Street, instead of 1920 Blake Street.

2 The parties offered the transcript of the municipal court proceeding against Smith for the trial court to consider in ruling on the motion for summary judgment.

3 Appellee obtained an affidavit of the Russellville City Attorney stating that the City passed ordinance 1459 in 1994 to allow its city council to make zoning changes by majority vote pursuant to Ark. Code Ann. § 14-56-423 and Taggart.