City of Fort Smith, Arkansas v. Dan McCutchen
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SUPREME COURT OF ARKANSAS
No. 07-864
CITY OF FORT SMITH, ARKANSAS,
APPELLANT;
VS.
DAN MCCUTCHEN,
APPELLEE;
Opinion Delivered MARCH 6, 2008
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT, NO. CIV-2005-612,
HON. STEPHEN MERRILL TABOR,
JUDGE;
AFFIRMED.
DONALD L. CORBIN, Associate Justice
Appellant City of Fort Smith, Arkansas, appeals the Sebastian County Circuit Court’s
order granting Appellee Dan McCutchen a variance from a setback requirement contained
in the Fort Smith City Ordinances. On appeal, Fort Smith argues that Ark. Code Ann. § 1456-425 (Repl. 1998) is unconstitutional because it permits a de novo trial on appeal of a
legislative determination made by a city Board of Zoning Adjustment (BZA). Accordingly,
our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1). We find no error and affirm.
McCutchen owns real property in Fort Smith, Arkansas. His home is located on the
property, and sometime in late 1998 or early 1999, Quentin McCutchen, McCutchen’s son,
built a carport at the home. In 2003, while Quentin was doing some work at his father’s
home, a Fort Smith city inspector came by and informed him that the carport was not in
compliance with a Fort Smith City Ordinance concerning setback requirements.
In 2005, McCutchen filed a variance request with the Fort Smith BZA to allow the
carport constructed in violation of the 30’ setback requirement to remain at its current 7’11”
setback. At the April 12, 2005 Fort Smith BZA meeting, McCutchen’s variance request was
considered and denied due to the fact that no hardship was demonstrated as required by
Arkansas statute and city ordinance.1 McCutchen appealed this decision to the circuit court
pursuant to section 14-56-425, and requested a jury trial on the matter.
On March 22, 2007, Fort Smith filed a motion for a judicial determination that section
14-56-425 is unconstitutional, or in the alternative, a judicial determination that judicial
review of this action is limited to whether the BZA abused its discretion. On April 13, 2007,
a hearing was held on Fort Smith’s motion during which Fort Smith argued that section 1456-425 violates the separation-of-powers doctrine of the Arkansas Constitution. In denying
the motion, the circuit court noted that we had previously held section 14-56-425 to be
constitutional and concluded that it did not, or could not, determine that the statute is
unconstitutional. An order was entered on April 23, 2007, reflecting the court’s ruling and
again noting as follows:
The Supreme Court of Arkansas has previously upheld the
constitutionality of the statute in question on multiple occasions, including after
a challenge which addressed the same issues put forth by [Fort Smith] in the
instant case. (see City of Jonesboro v. Vuncannon, 310 Ark. 366). [Fort Smith’s]
Motion is denied.
A de novo jury trial was held on April 24, 2007, which concluded with the jury finding in
McCutchen’s favor and granting him a variance from the setback requirement. This appeal
followed.
1
During the meeting, it was noted that McCutchen had filed an identical application in 2004, which
had been heard and denied at an April 13, 2004 BZA hearing. McCutchen appealed that decision to the
circuit court, and the circuit court dismissed the appeal.
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For its sole argument on appeal, Fort Smith contends that section 14-56-425 is
unconstitutional because it permits a de novo trial on appeal of a legislative determination
made by a BZA. While recognizing that this court has previously held section 14-56-425, or
its predecessor statute, constitutional, Fort Smith urges us to follow Goodall v. Williams, 271
Ark. 354, 609 S.W.2d 25 (1980), and to find that de novo review of a BZA determination
violates the separation-of-powers doctrine because it permits a circuit court jury to review a
variance application without any deference to a BZA’s decision. In conclusion, Fort Smith
claims that a BZA exercises legislative discretion when it grants or denies a variance, such that
the statutorily directed de novo review by a jury should be determined to be unconstitutional.
Conversely, and in addition to his argument that the statute is constitutional, McCutchen
argues that Fort Smith waived any right to claim that de novo review from a BZA’s
determination is unconstitutional and that the city is judicially estopped from asserting such
a claim.
Prior to addressing Fort Smith’s argument that section 14-56-425 is unconstitutional,
it is necessary to address McCutchen’s contention that the city has waived any right to
challenge the constitutionality of the statute and that it is judicially estopped from asserting
such a claim. Specifically, McCutchen argues that because the Fort Smith City Ordinance
provides for a de novo review in the circuit court, Fort Smith has waived any right to claim
that such an appeal is an unconstitutional encroachment upon its own powers. McCutchen
further argues that Fort Smith’s attempt to now suggest that even its own ordinance, which
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contains a right to de novo review, is invalid is inconsistent with its earlier position taken by
enacting the ordinance, and thus is precluded by the doctrine of judicial estoppel.
Upon review, McCutchen’s claims are without merit. Waiver is the voluntary
abandonment or surrender by a capable person of a right known to him to exist, with the
intent of forever depriving him of the benefits of the right, and it may occur when one, with
full knowledge of the material facts, does something which is inconsistent with the right or
his intention rely upon it. See Cochran v. Bentley, 369 Ark. 159, ___ S.W.3d ___ (2007).
Waiver is simply not applicable in the instant case merely because Fort Smith provided for a
right of appeal from BZA decisions, as it is required by law to do. Additionally, we cannot
address McCutchen’s judicial estoppel argument as it was not made before the circuit court.
It is well settled that this court will not consider arguments made for the first time on appeal.
See Beverly Enters-Ark., Inc. v. Thomas, 370 Ark. 310, ___ S.W.3d ___ (2007). Consequently,
Fort Smith’s constitutionality argument is properly before this court.
A review of a challenge to the constitutionality of a statute begins with the principle
that statutes are always presumed to be constitutional and the burden of proving otherwise is
upon the party challenging the statute. See Parker v. BancorpSouth Bank, 369 Ark. 300, ___
S.W.3d ___ (2007); Night Clubs, Inc. v. Fort Smith Planning Comm’n, 336 Ark. 130, 984
S.W.2d 418 (1999). We must construe a statute as constitutional if it is possible to do so. Id.
Our state constitution divides governmental powers among three distinct departments:
legislative, executive, and judicial. Goodall, 271 Ark. 354, 609 S.W.2d 25. Each department
is prohibited from exercising powers properly belonging to either of the others. Ark. Const.
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art. 4, § 2. Such a division of powers represents a familiar principle of our constitutional law,
the enforcement of which is essential to preserve the orderly processes of government and its
basic integrity. Goodall, 271 Ark. 354, 609 S.W.2d 25.
Although de novo review of a legislative act is unconstitutional, see City of Lowell v.
M&N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996), we have previously held
that it is proper to review de novo a final action of an agency acting in an administrative or
quasi-judicial mode. See City of Jonesboro v. Vuncannon, 310 Ark. 366, 837 S.W.2d 286 (1992).
To put it another way, appeals to the circuit court from a BZA are reviewed de novo.
Quapaw Quarter Ass’n, Inc. v. City of Little Rock Bd. of Zoning Adjustment, 261 Ark. 74, 546
S.W.2d 427 (1977); Arkansas Power & Light Co. v. City of Little Rock, 243 Ark. 290, 420
S.W.2d 85 (1967); Little Rock v. Leawood Prop. Owners’ Ass’n, 242 Ark. 451, 413 S.W.2d 877
(1967). See also McCammon v. Boyer, 285 Ark. 288, 686 S.W.2d 421 (1985); City of Paragould
v. Leath, 266 Ark. 390, 583 S.W.2d 76 (1979); Civil Serv. Comm’n of Van Buren v. Matlock, 206
Ark. 1145, 178 S.W.2d 662 (1944). Moreover, in Vuncannon, we held that a city council’s
action on its zoning regulations was properly reviewed de novo by the circuit court where
the council’s action was not an enactment, but an application of its regulations. 310 Ark. 366,
837 S.W.2d 286. As we have said before, any interpretation of a statute by this court
subsequently becomes a part of the statute itself. Night Clubs, 336 Ark. 130, 984 S.W.2d 418.
Although Fort Smith recognizes the above jurisprudence, it still urges this court to find
section 14-56-425 unconstitutional under the Goodall test. Upon review, our decision in
Goodall does not negate our previous determinations that de novo review of an administrative
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agency, such as a BZA, is constitutional. In Goodall, 271 Ark. 354, 609 S.W.2d 25, this court
distinguished between those instances where de novo review is appropriate and when it is
constitutionally prohibited. Specifically, we explained:
The issue of the constitutional propriety of de novo review by the
judiciary of administrative action primarily turns upon the character and legal
status of the interests which are affected by administrative action. If the
interests affected by administrative actions are constitutionally or statutorily
preserved or preserved by private agreement, so that their enforcement is a
matter of right, de novo review by the judiciary of administrative decisions
altering these interests is appropriate. On the other hand, if the interests
affected are less than fixed or determined and their existence primarily depends
upon executive or legislative wisdom, de novo review is inappropriate, and
judicial review is basically limited to a determination of whether these interests
have been arbitrarily or capriciously affected. The doctrine of separation of
powers therefore restricts the judiciary to a very limited review of those matters
which are left to the wisdom of the executive in the application or execution
of laws but imposes upon the judiciary the obligation to redetermine the matter
when the executive redefines private rights.
Id. at 356, 609 S.W.2d at 27 (citations omitted). See also Tomerlin v. Nickolich, 342 Ark. 325,
27 S.W.3d 746 (2000); McCammon, 285 Ark. 288, 686 S.W.2d 421; Ark. Comm’n on Pollution
Control & Ecology v. Land Developers, Inc., 284 Ark. 179, 680 S.W.2d 909 (1984).
Furthermore, in McCammon, this court examined the issue of the proper standard of review
in an appeal from a city commission such as a BZA. There, we explained that
[t]he Planning Commission, sitting as a Board of Adjustment has no power to
legislate. The appellants and appellees dealt with the Commission on matters
relating to the use of their properties. . . . Individual property rights are secured
by several provisions of our constitutions. Individuals are not constitutionally
guaranteed the right to do with their property what they wish in all
circumstances. The police power and health and welfare doctrines clearly
mandate restrictions on ownership and use of property in such a manner as to
prevent detriment to the rights of the public.
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. . . If de novo review of actions by administrative boards and
commissions were not allowed a board or commission might act arbitrarily or
unreasonably or even conceal the real facts and thereby protect such acts from
proper review. Therefore, a de novo hearing on appeal is proper when the appeal is
from actions taken by administrative boards, commissions and agencies exercising
adjudicatory or quasi judicial functions.
Id. at 292-93, 686 S.W.2d at 424 (emphasis added) (citation omitted).
Section 14-56-425 provides that an appeal may be taken from a final action by an
administrative or quasi-judicial agency concerned with the administration of municipal
building and zoning regulations to the circuit court where it “shall be tried de novo according
to the same procedure which applies to appeals in civil actions from decisions of inferior
courts, including the right of trial by jury.” A BZA is such an administrative agency and,
despite Fort Smith’s argument that the Fort Smith BZA made a legislative determination, a
BZA does not have the power to legislate. See McCammon 285 Ark. 288, 686 S.W.2d 421.
Not only does a BZA not have the power to legislate, it is clear that the Fort Smith BZA was
acting in an adjudicatory or quasi-judicial manner when it denied McCutchen’s variance
request because it related to the enforcement of an already-established ordinance.
Accordingly, Fort Smith’s argument must be rejected as section 14-56-425 is not a violation
of the separation-of-powers doctrine and is constitutional.
Affirmed.
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