City of Lowell v. M. & N Mobile Home Park, Inc.
Annotate this Case
CITY of LOWELL, et al. v. M & N MOBILE HOME
PARK, INC.
95-521 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered February 12, 1996
1. Constitutional law -- powers of government -- general assembly
gives powers to municipalities, including zoning power. -- The
powers of government are divided into three separate branches
of government; the legislative power of state government is
vested in the General Assembly with the right of the
initiative and referendum reserved to the people; the General
Assembly can delegate the legislative power to enact
ordinances to municipal corporations; when a municipality acts
in a legislative capacity, it exercises a power conferred upon
it by the General Assembly, and consequently, an act of a
municipality is the co-equal of an act of the General
Assembly; the General Assembly has given to municipal
corporations the power to enact zoning ordinances; a municipal
corporation's exercise of its zoning power is the co-equal of
an act by the General Assembly.
2. Constitutional law -- legislative power discussed --
legislative branch is the sole judge of the laws. --
The legislative power includes discretion to determine the
interests of the public as well as the means necessary to
protect those interests; within constitutional limits, the
legislative branch is the sole judge of the laws that should
be enacted for the protection and welfare of the people and
when and how the police power of the State is to be exercised.
3. Constitutional law -- legislative and judicial branch
distinguished. -- The legislative branch of government has
discretion to determine the interests of the public, but the
judicial branch has the power to set aside legislation that is
arbitrary, capricious, or unreasonable; this is a limited
power, and the judiciary, in acting under this limited power,
cannot take away the discretion that is constitutionally
vested in a city's legislative body.
4. Jurisdiction -- determination as to whether zoning enactment
permissible -- chancery court has subject-matter jurisdiction.
-- The chancery court has subject-matter jurisdiction to
determine whether a zoning enactment is arbitrary, capricious,
or unreasonable.
5. Zoning & planning -- review of zoning legislation -- judicial
branch may not review de novo. -- The question on review is
whether it can be said that the city council abused its
discretion in zoning matters; the judicial branch does not
have the authority to review zoning legislation de novo, as
that would constitute an unconstitutional taking of the power
of the legislative branch.
6. Constitutional law -- when a legislative enactment may be set
aside by the judicial department. -- The judicial department
can set aside a legislative enactment only when the
legislative branch has abused its discretion in an enactment
because of arbitrariness.
7. Zoning & planning -- review of -- burden on the moving party
to prove the enactment arbitrary. -- In reviewing cases
involving legislative enactments, such as zoning ordinances,
there is a presumption that the legislative branch acted in a
reasonable manner, and the burden is on the moving party to
prove that the enactment was arbitrary; this presumption is a
presumption of law and not merely an inference of fact.
8. Courts -- chancery courts have a limited function when
reviewing legislation -- arbitrary and capricious defined. --
The chancery court has a limited function in reviewing
legislation; it acts not as an ordinary court of equity, but
instead acts only to determine whether the legislative action
was arbitrary, capricious, and unreasonable; arbitrary is
"decisive but unreasoned action," and capricious is "not
guided by steady judgment or purpose"; an enactment is not
arbitrary if there is any reasonable basis for its enactment.
9. Appeal & error -- appellate review of equity cases -- fact and
law reviewed differently. -- The appellate court will not set
aside a chancellor's finding of fact unless it is clearly
erroneous; this deference is granted because of the regard the
appellate court has for the chancellor's opportunity to judge
the credibility of the witnesses; however, if a chancellor
erroneously applies the law and the appellant suffers
prejudice, the erroneous ruling is reversed.
10. Zoning & planning -- chancellor should only have determined
whether there was a rational basis for the city's refusal to
rezone the land -- rational basis found. -- Where the sole
issue before the chancery court should have been whether there
was a rational basis for the city's refusal to rezone the five
acres and appellees proposed placing seventy mobile homes on
the five acres, the zoning ordinance set out minimum area
requirements for both mobile-home parks and individual-
dwelling units, and the five-acre tract had no street
frontage, it did not qualify for rezoning under the terms of
the zoning ordinance; this fact served as a rational basis for
the refusal to rezone the five acres; the ordinance did not
provide for coupling, but more important, the refusal to
rezone was fairly debatable, and if it was fairly debatable,
it was not "unreasoned" or arbitrary.
11. Zoning & planning -- opinion of local residents is an
appropriate factor for consideration -- mere fact of public
opposition alone not sufficient basis on which to deny an
application -- chancellor's ruling in error. -- Where the
planning commission heard considerable testimony from
neighbors who opposed the rezoning, the chancellor's rejection
of this evidence was in error; the opinion of local residents,
when it reflects logical and reasonable concerns, is an
appropriate factor for a planning commission or a city council
to consider in zoning cases, and can help form a rational
basis for a city's legislative decisionmaking; however, the
mere fact of public opposition to a zoning application will
not supply a rational basis for denial of an application; the
public opposition must reflect logical and reasonable
concerns.
12. Zoning & planning -- owner of property may give opinion
testimony as to the value of his property -- such testimony
should be stricken only if it has no reasonable basis. -- The
owner of property, because of his relationship as owner, is
competent to give opinion testimony on an issue of the value
of his property regardless of his knowledge of property values
and it is not necessary to show that the owner is an expert or
is acquainted with the market value of local real estate; such
testimony should be stricken only if it has no reasonable
basis.
13. Zoning & planning -- public opposition to zoning application
reflected logical and reasonable concerns -- such opposition
should not have been disregarded by the court. -- Where the
public opposition to the zoning application reflected logical
and reasonable concerns, the public expressed opposition
because of: increased traffic on limited roads, increased
noise, and a probable decrease of the value of surrounding
lands; the concerns expressed by the public to the Planning
Commission were logical and reasonable, constituted a
legitimate factor in the legislative decisionmaking, and
should not have been disregarded by the court.
14. Zoning & planning -- appellee failed to meet its burden of
proof -- legislative branch acted within its discretion in
refusing to rezone the tract. -- Appellee did not meet its
burden of proof by showing that there was no rational basis
for the city council's refusal to rezone; consequently, the
legislative branch acted within its discretion in refusing to
rezone the tract, and the chancellor violated the
constitutional separation of powers by taking discretion from
the legislative branch and placing it in the judicial branch.
Appeal from Benton Chancery Court; Donald Huffman, Chancellor;
reversed and dismissed.
Pawlik & Associates, by: Kevin J. Pawlik and Ella Maxwell
Long, for appellants.
Matthews, Campbell & Rhoads, P.A., by: David R. Matthews, for
appellee.
Robert H. Dudley, Justice.
2-12-96 *ADVREP3*
CITY OF LOWELL, ET AL.,
APPELLANTS,
V.
M & N MOBILE HOME PARK, INC.,
APPELLEE.
95-521
APPEAL FROM THE BENTON COUNTY
CHANCERY COURT,
NO. E94-601-1,
HON. DONALD HUFFMAN, PRESIDING
JUDGE,
REVERSED AND DISMISSED.
Robert H. Dudley, Justice.
This is a zoning case. Appellee M & N Mobile Home Park, Inc.,
purchased 7.19 acres of land in Lowell in 1971. Between 1971 and
1986, it operated a mobile-home park on slightly less than two of
the acres. The other five acres remained unoccupied. In 1986, the
city passed a zoning ordinance that designated the two acres as
MHP, zoned for a mobile-home park, and designated the remaining
five acres as R-1, for single-family dwellings. In 1994, appellee
petitioned the planning commission to rezone the five acres to MHP
so that it could utilize the full seven acres as a mobile-home
park. The planning commission denied the application. Appellee
appealed to the city council. The council upheld the commission.
Appellee filed suit and asked the chancery court to rezone the
five-acre tract to MHP because the action of the city council was
arbitrary. The trial court granted the relief and rezoned the five
acres as MHP. We reverse and dismiss.
I.
A. Constitutional Provisions
The powers of government are divided into three separate
branches of government. Ark. Const. art. 4, 1. The legislative
power of state government is vested in the General Assembly with
the right of the initiative and referendum reserved to the people.
Ark. Const. amend. 7, 1. The General Assembly can delegate the
legislative power to enact ordinances to municipal corporations.
Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785 (1904).
We have written that when a municipality acts in a legislative
capacity, it exercises a power conferred upon it by the General
Assembly, and consequently, an act of a municipality is the co-
equal of an act of the General Assembly. Little Rock Ry. & Elec.
Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911). The General
Assembly has given to municipal corporations the power to enact
zoning ordinances. Ark. Code Ann. 14-56-402 --14-56-425 (1987).
A municipal corporation's exercise of its zoning power is the co-
equal of an act by the General Assembly.
The legislative power includes discretion to determine the
interests of the public as well as the means necessary to protect
those interests. Within constitutional limits, the legislative
branch is the sole judge of the laws that should be enacted for the
protection and welfare of the people and when and how the police
power of the State is to be exercised. Missouri & North Arkansas
R.R. Co. v. State, 92 Ark. 1, 121 S.W. 930 (1909).
One branch of government shall not "exercise any power
belonging to either of the others, except in the instances
hereinafter expressly directed or permitted." Ark. Const. art. 4,
2. For each branch to operate as constitutionally envisioned,
one branch must not be subordinated to either or both of the other
branches, and one branch must not take control of one or both of
the other branches. The legislative branch has discretion to
determine the interests of the public, but the judicial branch has
the power to set aside legislation that is arbitrary, capricious,
or unreasonable. Wenderoth v. City of Fort Smith, 251 Ark. 342,
472 S.W.2d 74 (1971). This is a limited power, and the judiciary,
in acting under this limited power, cannot take away the discretion
that is constitutionally vested in a city's legislative body. City
of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1971).
The chancery court has subject-matter jurisdiction to determine
whether a zoning enactment is arbitrary, capricious, or
unreasonable. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994); City of Little Rock v. Breeding, 273 Ark. 437,
619 S.W.2d 664 (1981); Wenderoth v. City of Fort Smith, 251 Ark.
342, 472 S.W.2d 74 (1971).
This court's foundation case involving zoning and the
separation-of-powers doctrine is Herring v. Stannus, 169 Ark. 244,
275 S.W. 321 (1925). There we wrote:
[The city council's] action is final unless we can say
that the council abused its discretion. But this
discretion, in so far as a discretion abides, is vested
in the council, charged by law with the duty of passing
on the question, and does not rest in the courts which
review the council's action.
...
The question is not what a member of the court might
decide if the question were submitted to him as a matter
of discretion, but rather is whether it can be said that
the council abused its discretion, and we may not say
that such was the case unless that fact clearly appears.
Id. at 256, 275 S.W.2d at 325 (citations omitted). In recent
years, we have frequently written that the judicial branch does not
have the authority to review zoning legislation de novo, as that
would constitute an unconstitutional taking of the power of the
legislative branch. See, e.g., Smith v. City of Little Rock, 279
Ark. 4, 648 S.W.2d 454 (1983); City of Conway v. Conway Housing
Authority, 266 Ark. 404, 584 S.W.2d 10 (1979).
B. The Pfeifer case
There was an aberration in our case law, which is set out only
to show that it existed and that it has ended. Shortly after we
correctly decided the foundation case of Herring v. Stannus, we
decided City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883
(1925), and in essence, held that the review of zoning appeals
could be by trial de novo rather than by solely determining whether
the enactment by the legislative branch was arbitrary. The effect
was to judge the wisdom of the enactment in violation of the
separation-of-powers doctrine. We began to retreat from the
Pfeifer doctrine in the 1953 case of Evans v. City of Little Rock,
221 Ark. 252, 253 S.W.2d 347 (1953), and backed further away from
it in the 1966 cases of Downs v. City of Little Rock, 240 Ark. 623,
401 S.W.2d 210 (1966) and City of Little Rock v. Parker, 241 Ark.
381, 407 S.W.2d 921 (1966). The Pfeifer doctrine led to criticism.
Morton Gitelman, Judicial Review of Zoning in Arkansas, 23 Ark. L.
Rev. 22 (1969); Morton Gitelman, Zoning - The Expanding Business
District Doctrine in Arkansas: An Obstacle to Land Use Planning, 28
Ark. L. Rev. 262 (1975). In Baldridge v. City of North Little Rock,
258 Ark. 246, 523 S.W.2d 912 (1975), we re-examined the Pfeifer
doctrine and almost laid it to rest. See Robert R. Wright, Zoning
Law in Arkansas, 3 UALR L.J. 421, 477 (1980). Finally, in City of
Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981), we
noted the many cases that "restricted, limited and modified the
holding in Pfeifer," and said the case now has "little if any
validity." Id. at 447-48, 619 S.W.2d at 669-70. In summary, we
have returned to the foundational doctrine of Herring v. Stannus,
which provides that the judicial department can set aside a
legislative enactment only when the legislative branch has abused
its discretion in an enactment because of arbitrariness.
C. Standard of Review
1. Presumption of Validity
In reviewing cases involving legislative enactments, such as
zoning ordinances, there is a presumption that the legislative
branch acted in a reasonable manner, and the burden is on the
moving party to prove that the enactment was arbitrary. City of
Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). In
Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74
(1971), we quoted with approval from Little Rock Railway & Electric
Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911), as follows:
It is only an arbitrary abuse of the power which the
courts should control; and when the exercise of that
power and discretion is attacked in the courts, a
presumption must be indulged that the council has not
abused its discretion, but has acted with reason and in
good faith for the benefit of the public. To proceed
upon any other theory would be to substitute the judgment
and discretion of the courts for the judgment of the
members of the council with whom the lawmakers have seen
fit to lodge this power.
Id. at 227, 142 S.W. at 166. This presumption is a presumption of
law and not merely an inference of fact. See Rockefeller v. Hogue,
244 Ark. 1029, 429 S.W.2d 85 (1968).
2. Rational Basis
The chancery court has a limited function in reviewing
legislation. It acts not as an ordinary court of equity, but
instead acts only to determine whether the legislative action was
arbitrary, capricious, and unreasonable. City of Batesville v.
Grace, 259 Ark. 493, 594 S.W.2d 224 (1976). We recently defined
"arbitrary" and "capricious" in City of Little Rock v. Pfeifer, 318
Ark. 679, 887 S.W.2d 296 (1994), as follows: Arbitrary is "decisive
but unreasoned action," and capricious is "not guided by steady
judgment or purpose." The definition most easy to apply was given
in City of Little Rock v. Breeding, 273 Ark. 437, 445, 619 S.W.2d 664, 668 (1981), when we said that the enactment was not arbitrary
if there was any reasonable basis for its enactment.
3. The Bentley case
In appellate review of ordinary equity cases there are two
different components of the chancellor's ruling that are
considered. The appellate court will not set aside a chancellor's
finding of fact unless it is clearly erroneous. This deference is
granted because of the regard the appellate court has for the
chancellor's opportunity to judge the credibility of the witnesses.
Ark. R. Civ. P. 52. However, a chancellor's conclusion of law is
not entitled to the same deference. If a chancellor erroneously
applies the law and the appellant suffers prejudice, the erroneous
ruling is reversed. Manifestly, a chancellor does not have a
better opportunity to apply the law than does the appellate court.
In an early zoning case, which was actually determined on
appeal by a chancellor's finding of fact, we wrote that the
"findings of fact made by the court are abundantly supported by the
testimony," and as a result, we affirmed the ruling by the
chancellor. City of Little Rock v. Bentley, 204 Ark. 727, 731, 165 S.W.2d 890, 892 (1942). Unfortunately, through seemingly rote
citation, the Bentley statement became the Bentley dogma. As an
illustration, in Olsen v. City of Little Rock, 241 Ark. 155, 406 S.W.2d 706 (1966), we wrote:
In a case of this kind the chancellor should sustain
the city's action unless he finds it to be arbitrary. No
matter which way the chancellor decides the question, we
reverse his decree only if we find it to be against the
preponderance of the evidence. City of Little Rock v.
Garner, 235 Ark. 362, 360 S.W.2d 116 (1962).
Id. at 156, 406 S.W.2d at 706. The Bentley doctrine was criticized
in a 1969 Law Review Article, Morton Gitelman, Judicial Review of
Zoning in Arkansas, 23 Ark. L. Rev. 22 (1969), which, in part,
states that under Bentley, the appellate court "does not even
mention whether the decisions of both the planning commission and
city council are supported by evidence." Id. at 34.
In 1981, in the case of City of Little Rock v. Breeding, we
returned to affirming only the chancellor's findings of fact under
Ark. R. Civ. P. 52, and held that a trial court could not
substitute its judgment for that of the legislative branch. Thus,
we have retreated from the Bentley dogma, even though we have never
expressly overruled it.
4. Correct Standard
In summary, the party alleging that legislation is arbitrary
has the burden of proving that there is no rational basis for the
legislative act, and regardless of the evidence introduced by the
moving party, the legislation is presumed to be valid and is to be
upheld if the judicial branch finds a rational basis for it. It is
not for the judicial branch to decide from evidence introduced by
the moving party whether the legislative branch acted wisely.
II.
The Trial Court Proceeding
Appellee offered considerable testimony in the chancery court
to show the reasonableness of its request to rezone the five-acre
tract. The chancellor apparently was moved by the testimony. The
result was that the chancellor's ruling focused on appellee's one
tract of land, and, consequently, lost sight of the concept that
zoning is by districts and not by individual parcels of land. It
is not constitutionally appropriate for a court to determine the
substantive merits of the city's refusal to rezone. The
fundamental concept of zoning legislation is sound city planning.
By focusing on appellee's one tract, the chancery court
unintentionally omitted consideration of the statutory design that
allows municipalities to prepare plans, make studies on future
development, prepare ordinances, make comprehensive studies, make
planning area maps, design streets, and make various other plans
"for the coordinated, adjusted, and harmonious development of the
municipality and its environs." Ark. Code Ann. 14-56-402 (1987).
The sole issue before the chancery court should have been
whether there was a rational basis for the city's refusal to rezone
the five acres. After appellee filed its complaint, the city moved
to dismiss the complaint on the ground that the "property sought to
be rezoned by M & N [appellee] does not qualify under the requested
MHP zone because it lacks the necessary frontage on a public
street." At trial, witness LeRoy Barker testified that the five
acres "has no frontage on any public street." Witness Patsie
Christie testified that "[t]here is about a one hundred and fifty
(150) foot access along the street into the mobile home park, there
is no other access to the property which M & N has sought to rezone
other than through the other property owned by M & N where the
mobile home park currently sits." Other proof showed that
appellees proposed placing seventy mobile homes on the five acres.
The zoning ordinance sets out minimum area requirements for both
mobile-home parks and individual-dwelling units, as follows:
d. Minimum Area Requirements
1. Land area 43,560 sq. feet (1 acre)
2. Land area per dwelling unit 4,355 sq. feet
3. Front yard setback 25 feet
4. Rear yard setback 25 feet
5. Side yard setback 7 feet (except)
6. Side yard setback from public street 25 feet
7. Frontage on public street 100 feet
The five-acre tract has no street frontage; thus, by itself,
it does not qualify for rezoning under the terms of the zoning
ordinance. This fact can serve as a rational basis for the refusal
to rezone the five acres. M & N might argue that when the five
acres is coupled with the two acres, there is sufficient street
frontage. One response is that the ordinance does not provide for
coupling, but more important, this fact shows that the refusal was
fairly debatable, and if it was fairly debatable, it was not
"unreasoned" or arbitrary. City of Little Rock v. Pfeifer, 318
Ark. 679, 887 S.W.2d 296 (1994).
The planning commission heard considerable testimony from
neighbors who opposed the rezoning. The chancellor completely
rejected this evidence because "the property appears to be capable
of use for the purpose requested and it is in a proper area which
is consistent with the City's plans." The chancellor's ruling was
as follows:
Mr. Hutchins opposed the rezoning because he lives within
three hundred (300) feet of the property and feared that
it would decrease the value of the property, be a noise
problem and increase the need for police protection and
have an impact on the schools. Flossie Clardy expressed
that she did not want the mobile homes. Jack Clardy had
stated to the Planning Commission that his family owned
rental property and started the first mobile home park in
the city and that he felt that seventy-five (75) mobile
homes on seven (7) acres is too high a density and would
impact the police department and schools; and that he
would like to have an ordinance to stop mobile homes in
Lowell. Brandi Julian stated to the Planning Commission
that the rezoning would decrease the value of their
property and increase traffic. Dee Lawson stated that it
would depreciate her property and that she did not want
the mobile home park opened up. Cathryn Anderson opposed
the mobile home agreeing with other statements that had
been made. Alta Looby expressed that she wanted no
mobile homes. Tom Looby stated that he agreed that he
wanted no mobile homes, that the extra traffic problems
with seventy (70) mobile homes on an acre would be like
a high-rise apartment. James Clardy said he did not
favor. Randy Anderson agreed with the comments made by
others; and that living in the area, he felt that the
mobile home park would be an eye sore. Crystal Christo
stated to the Planning Commission that she felt the City
should reconsider its current stand on mobile homes, that
no more mobile homes should be allowed in Lowell and the
existing ones should not be replaced, and that she would
like to see an eight (8) foot privacy fence. Carol
Wilson stated that she agreed with the statements made,
that it would devalue the property and that there should
be no more mobile home parks. Robin McDonald expressed
that there would be a problem with depreciating property
values. Bret Wright stated that he agreed, there should
be no additional expansions of mobile home parks.
Herbert Johnson owned a duplex on the west side of the
mobile home park, but did not live in Lowell, and felt
that there should be a buffer zone between the mobile
home park and the R1 district. Kendall Morgan, who lives
at 314 McClure, had built a privacy fence in cooperation
with Mr. Nordsell and stated that the mobile homes
depreciate in value and cause all adjacent property to
depreciate. Morgan further stated that he found Nordsell
to be an honest man, but that he opposed the mobile home
park expansion. Merl Atha, whose property adjoins the
property on the west, opposed the rezoning also. There
were comments by Planning Commissioners McMurray and Hare
that have been stated in the testimony about problems
with mobile home parks. Based on my review of these
comments, there is nothing here for the Planning
Commission to base their rejection for the rezoning for,
even if they took everything stated to them by those
individuals as fact. The property appears to be capable
of use for the purpose requested and it is in a proper
area, which is consistent with the City's plans.
The ruling rejecting the evidence was in error. The opinion
of local residents, when it reflects logical and reasonable
concerns, is an appropriate factor for a planning commission or a
city council to consider in zoning cases, and can help form a
rational basis for a city's legislative decisionmaking. Nelson v.
City of Selma, 881 F.2d 836 (9th Cir. 1989); Burns v. City of Des
Peres, 534 F.2d 103 (8th Cir. 1976); Prince v. County Comm'rs of
Franklin County, 769 S.W.2d 833 (Mo. App. 1989); Mira Dev. Corp. v.
City of San Diego, 252 Cal. Rptr. 824 (Cal. App. 1988); Ensign
Bickford Realty Corp. v. City Council, 137 Cal. Rptr. 304 (Cal.
App. 1977); Metee v. County Comm'rs of Howard County, 129 A.2d 136
(Md. App. 1957); and 83 Am. Jur. 2d, Zoning and Planning 1065.
We find no cases to the contrary. However, the mere fact of public
opposition to a zoning application will not supply a rational basis
for denial of an application. The public opposition must reflect
logical and reasonable concerns. If the rule were otherwise, public
opinion by itself could justify the denial of constitutional rights
and those rights would thus be meaningless. Ross v. City of Yorba
Linda, 2 Cal. Rptr. 2d 638 (Cal. App. 1991).
In the case before us, the public opposition to the zoning
application reflected logical and reasonable concerns. The public
expressed opposition because of increased traffic on limited roads.
This concern is reasonable because the only way M & N could comply
with the street frontage requirement was by coupling the five acres
with the two acres and by using the street frontage located on the
two acres for the entire seven acres. The public opposition that
was based on noise was reasonable since there would a greater
concentration of considerably more mobile homes. The public
opposition that was based on a probable decrease of the value of
surrounding lands is reasonable and logical. Five nearby
landowners testified that the value of their land would decrease if
the tract were rezoned. It is well settled that the owner of
property, because of his relationship as owner, is competent to
give opinion testimony on an issue of the value of his property
regardless of his knowledge of property values and it is not
necessary to show that the owner is an expert or is acquainted with
the market value of local real estate. Such testimony should be
stricken only if it has no reasonable basis. Arkansas State Hwy.
Comm'n v. Maus, 245 Ark. 357, 432 S.W.2d 478 (1968). Thus, their
testimony was competent and the Planning Commission could consider
it. In addition, one member of the Planning Commission stated that
he moved from a residence solely because it was located next to a
mobile-home park, and another commissioner stated that he lived
next to a mobile-home park for two and one-half years, and the only
disturbances in the neighborhood came from the mobile-home park.
In summary, the concerns expressed by the public to the Planning
Commission were logical and reasonable, constituted a legitimate
factor in the legislative decisionmaking and should not have been
disregarded by a court.
This basis, public opposition, was not developed in the trial
court, but these cases are not reviewed as ordinary equity cases.
They are reviewed only to determine whether the legislative body
had a reasonable basis for the enactment. City of Batesville v.
Grace, 259 Ark. 493, 534 S.W.2d 224 (1976).
In summary, M & N did not meet its burden of proof by showing
that there was no rational basis for the city council's refusal to
rezone. Consequently, we hold that the legislative branch acted
within its discretion in refusing to rezone the tract, and the
chancellor violated the constitutional separation of powers by
taking discretion from the legislative branch and placing it in the
judicial branch.
Reversed and dismissed.
Jesson, C.J., and Glaze and Corbin, JJ, dissent. 02-12-96 *ADVREP3A*
CITY OF LOWELL, ET AL.,
APPELLANTS,
V.
M & N MOBILE HOME PARK, INC.,
APPELLEE,
95-521
DISSENT.
Bradley D. Jesson, Chief Justice
I am mindful of the deference to be accorded the legislative
decisions of municipalities. I agree with every word the majority
says about separation of powers. However, the judiciary should not
be completely hamstrung in its review of a city's action. Judicial
review exists to protect landowners such as the appellee from
unreasoned decisions. This is a case in which the chancellor
carefully and thoughtfully exercised his power of review, accorded
the city its due deference, and reached a reasonable, supportable
conclusion. I would affirm his decision.
Supposedly, the city had two rational bases for its refusal to
rezone the subject property: the lack of street frontage and the
concerns expressed by citizens who lived near the proposed mobile
home park district.
Regarding the frontage requirement, the city's zoning
ordinance requires that a mobile home park district have one
hundred feet of frontage on a public street. If the appellee's
five acres were rezoned to the MHP classification, the result would
be a 7.19 acre mobile home park district since what M & N seeks to
do here is simply extend its existing mobile home park to include
the contiguous, otherwise land-locked parcel owned by it.
According to Patsie Christie, the city's Deputy Recorder, who also
has a background of education and experience in public
administration and city planning, there is a one hundred and fifty
foot access along the street into the currently existing park.
Therefore, the requirement would be met as it pertains to the
overall mobile home park district. As the majority states, zoning
is by district.
The problem with the majority's argument on the frontage
requirement can be seen by the following example. Suppose M & N
wished to use the property as single-family or multi-family
residential. The city's zoning ordinance requires two hundred feet
of frontage for single-family and one hundred feet of frontage for
multi-family districts respectively. The parcel of land which is
the subject of this case can meet neither of those requirements
because it has no street frontage except through the existing
mobile home park. For what residential purpose can M & N use its
property? It should be remembered that the city's own zoning plan
created this land-locked parcel. The only way the parcel can
comply with the zoning ordinance is to combine it with the existing
mobile home park district.
There are a number of facts which do not appear in the
majority opinion. I will set them out here because I believe they
constitute overwhelming evidence in support of the chancellor's
finding. The five or so acres which are the subject of this case
sit landlocked in an area just off McClure Avenue in Lowell. The
property is contiguous to the appellee's remaining acreage which is
in use as a mobile home park and is properly zoned as MHP. The
existing mobile home park fronts McClure Avenue and juts,
penninsula-like, into the five acre tract. The 7.19 acres as a
whole is surrounded by a variety of uses. To the southwest are
duplexes. To the west and northwest are homes on lots with large
open areas. To the north is a residential housing addition
containing two lots with mobile homes. To the east is an open area
and a stand of trees used as part of a pine tree nursery. To the
southeast are single family dwellings. Directly across the street
is a parcel of land which is not suitable for development. Across
the street and further east is a church.
When the appellee petitioned the Planning Commission to rezone
the remainder of his parcel to MHP, the matter was taken up at the
Commission's February 7, 1994, meeting. The minutes of the meeting
reflect that eighteen citizens spoke in opposition to the rezoning.
Their objections ranged from simply not wanting mobile homes or
considering them an "eyesore" to fear of decrease in property
values, increase in noise, traffic and crime, and the concern that
there would be too many mobile homes placed on the 7.19 acres.
After the citizens' objections were heard, one commissioner
commented that he had once lived next to a mobile home park and it
was the primary reason he had moved. Another commissioner said he
had once lived next to a mobile home park and the only disturbances
he experienced were from the park. Without further reason or
comment, the appellee's petition was denied.
The appellee fared no better at the City Council, to which he
appealed the Commission's decision. His petition was denied
without reason or comment.
The appellee then filed suit in chancery court alleging that
the city's denial was arbitrary, capricious and unreasonable. At
trial, strong evidence was presented that the city had no
reasonable basis whatsoever for its action. In fact, the evidence
was striking. The appellee put three city officials on the stand.
Not one city official could testify as to why the appellee's
application had been denied. In fact, the city's mayor, Glen
Rogers, who presided over the city council meeting on the date that
the appellee's application was considered, testified as follows:
Q.: Why was the rezoning request of M and N Mobile Home
Park rejected?
A.: Because the council turned it down.
Q.: Why did the council turn it down?
A.: I have no idea.
Q.: Was any reason given?
A.: There's no one give [sic] me any reason.
The mayor further testified that the rezoning request was
consistent with the city's land use plan and that the requirements
of the zoning ordinance were met. Finally, he testified:
Q.: Other than the fact that the Planning --, City
Council just said no, can you think of any reason why the
rezoning application of Mr. Nordsell was denied?
A.: I can't think of anything else.
There was also undisputed testimony that the appellee's
proposed use of the land was consistent with the city's overall
land use plan. The majority's implication otherwise is simply
erroneous. The plan divided the city into broad-category zones
such as residential, commercial or industrial. Patsie Christie
testified that a mobile home park district falls within the
residential category and therefore is consistent with the land use
plan. The mayor likewise testified that M & N's proposed rezoning
was consistent with the land use plan in effect in Lowell since
1971. Finally, there was testimony that the minimum requirements
of the zoning ordinance had been met, and that citizen opposition
had not been used, in the past, as a basis for the Commission to
deny a rezoning application. The city offered no testimonial
evidence at the hearing before the chancellor.
In the face of the evidence before him, the chancellor looked
in vain for a rational basis for the city's action. He found none
and, in light of the city officials' testimony and the personal
comments made by the Commissioners, concluded that the city's
action was arbitrary.
It is difficult to envision a stronger case for a finding of
arbitrariness than this one. We have defined the term "arbitrary"
as decisive but unreasoned action, City of Little Rock v. Pfeifer,
318 Ark. 679, 887 S.W.2d 296 (1994), and as an act arising from
unrestrained exercise of will, caprice or personal preference,
based on random or convenient choice rather than on reason or
nature. Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454
(1983). The absence of reason is common to both definitions.
True, the city is not required by law to set forth the reasons for
its actions. But the presumption of reasonableness does not extend
to infinity. Here we have not only a lack of any stated reason,
but affirmative statements by city officials that they knew of no
basis for the city's action.
By focusing on the comments made by the citizens at the
Planning Commission meeting, I fear we have given credence to the
idea that neighborhood objections, no matter how lacking in factual
support, may serve as a basis for a city's zoning decisions. I
disagree with the characterization of the citizens' and
Commissioners' comments as "evidence". As the majority correctly
points out, neighborhood objections, standing alone, should not be
considered as a basis for a zoning decision. However, that is
exactly what is happening here. In truth, there is no objective
reason for the city's action, as shown by the testimony of the city
officials at the trial. One Arkansas commentator has characterized
the use of neighborhood protest (or lack thereof) to provide a
basis for a city's action as "an aberrant and unwholesome
rationale" and "a distortion of the modern philosophy of zoning."
M. Gitelman The Role of the Neighbors in Zoning Cases, 28 Ark. L.
Rev. 221 (1974). In the majority opinion, we have sanctioned the
use of unproven fears, stereotypes and prejudices as providing a
rational basis for zoning decisions. If a city is permitted to
bootstrap neighborhood objections into a rational basis for the
denial of a mobile home park, it can happen just as easily with
apartments, duplexes, and low-cost housing. The same citizen
objections voiced here, such as increased traffic, noise, and
increased need for additional police could be argued equally in the
case of those uses. This is a door we should not open.
This brings me to the final point in this dissent. The
majority implies that we should give no deference to the
chancellor's finding in this case. I strongly disagree. The
chancellor was presented with testimonial and documentary evidence.
From that evidence, he found that the city's action was arbitrary.
He applied the proper burden of proof and standard of review. We
should uphold his finding unless it is clearly against the
preponderance of the evidence. In City of Little Rock v. Breeding,
273 Ark. 437, 619 S.W.2d 664 (1981) and City of Little Rock v.
Parker, 241 Ark. 381, 407 S.W.2d 921 (1966) we recognized that the
sole question before this court in a rezoning case is whether the
preponderance of the evidence before the chancellor showed that the
city acted arbitrarily. Applying that standard, I believe the
chancellor's finding was well supported by a preponderance of the
evidence.
Glaze and Corbin, JJ., join in this dissent.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
