Benton County Stone, Inc. v. Benton County Planning Board; Benton County, Arkansas; O.F. Duffield, Sue Ann Duffield, Frederic Dohle, Bertha Dohle, James Dohle, Katherine Dohle, Richard Lubera, Jr., Karen Lubera, Mike Wishon
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SUPREME COURT OF ARKANSAS
No.
08-291
BENTON COUNTY STONE CO., INC.,
APPELLANT,
VS.
Opinion Delivered October 30, 2008
AN APPEAL FROM THE CIRCUIT
COURT OF BENTON COUNTY,
ARKANSAS, NO. CV-06-126-3,
HONORABLE JAY T. FINCH, CIRCUIT
JUDGE
BENTON COUNTY PLANNING BOARD;
BENTON COUNTY, ARKANSAS; O.F.
DUFFIELD, SUE ANN DUFFIELD,
FREDERIC DOHLE, BERTHA DOHLE,
JAMES DOHLE, KATHERINE DOHLE,
RICHARD LUBERA, JR., KAREN
LUBERA, MIKE WISHON,
APPELLEES,
AFFIRMED.
ELANA CUNNINGHAM WILLS, Associate Justice
1.
CONSTITUTIONAL LAW — VOID FOR VAGUENESS DOCTRINE — LAND USE ORDINANCE REQUIRING
P RO P O SED DEVELOPM ENT PATTERNS TO BE CONSISTENT AND COM PATIBLE WITH EXISTIN G
DEVELOPM ENT AND THE ENVIRONM ENT WAS NOT UNCONSTITUTIONALLY VAGUE.
— A statute
or ordinance violates the first essential of due process of law if it either forbids or requires the doing
of an act in terms so vague that persons of ordinary intelligence must necessarily guess at its
meaning and differ as to its application; in the instant case, the ordinance required that the proposed
development “must be consistent and compatible with existing development and the environment”;
the use of the word “must” makes this provision mandatory; that the ordinance goes on to discuss
practices that are “encouraged” or “discouraged” does not mean that “compatibility” is “defined
in terms of a suggestion or preference”; the three clauses that follow the overarching “compatibility”
requirement are to be considered as factors that guide the exercise of the Appeal Review Board’s
discretion; as the circuit court correctly concluded, their presence does not render the mandatory
clause unconstitutionally vague.
2.
C O N ST ITUTIONAL LAW —
VOID FOR VAGUENESS DOCTRINE
—
CONTENTION THAT CIRCU IT
COURT ERRED IN DETERM INING T H AT THE REVIEW BOARD OPERATED UNDER DISCRETIONARY
RESTRAINTS RELATED TO WHETHER ORDINANCE WAS UNCONSTITUTIONALLY VAGUE.
— When
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the circuit court mentioned “discretionary restraints” in its order, it was essentially concluding that
the ordinance did not grant unbridled discretion in the Review Board; although set out as a second
point on appeal, appellant’s contention that the circuit court erred in determining that the Review
Board operated under discretionary restraints relates to whether the ordinance is unconstitutionally
vague; the circuit court therefore did not err in determining that the Review Board operated under
“discretionary restraints” in denying appellant’s permit.
3.
CONST IT U TIONAL LAW — ZONING ORDINANCES — APPELLANT M ADE NO COM PELLING
ARGUM ENT THAT , EVEN HAD THE TRIA L CO U RT STRICTLY CONSTRUED THE ORDINANCE, THE
ORDINANCE WOULD HAVE BEEN DETERM INED TO BE VOID FOR VAGUENESS. — Zoning ordinances,
being in derogation of the common law, are to be construed strictly; here, however, given the
language used in the circuit court’s order, it was impossible to tell how the court construed the
regulation; further, appellant pointed to nothing specific—other than stating that the trial court
“made no indication as to whether it strictly construed the ordinance”—that would support a
conclusion that the court did not so construe it; in short, appellant makes no compelling argument
that, even had the trial court strictly construed the ordinance, the ordinance would have been
determined to be void for vagueness.
The Watkins Law Office, PLLC, by: Jay A. Edwards, for appellant.
Robin Green, Benton County Att’y, for appellees Benton County Planning Board and Benton
County, Arkansas.
Lisle Law Firm, P.A., by: Chris Lisle, for appellees O.F. Duffield, Sue Ann Duffield, Frederic
Dohle, Katherine Dohle, Richard Lubera, Jr., Karen Lubera, and Mike Wishon.
The appellant, Benton County Stone Co., Inc., appeals an order of the Benton County
Circuit Court affirming the decision of the Appeal Review Board of the Benton County
Planning Board to deny Benton County Stone’s application for a permit to build a rock quarry.
Benton County Stone initially sought a permit from the Benton County Planning Board
(“the Planning Board”) to build a rock quarry in an unincorporated area of Benton County. The
Planning Board granted its approval on November 16, 2005. However, a group of landowners
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appealed the Planning Board’s decision to the Benton County Appeal Review Board (“the
Review Board”), and the Review Board reversed the Planning Board’s decision, finding that the
proposed development was not compatible with surrounding land uses.
Affidavits of two of
the three members of the Review Board indicate that the Review Board conducted an on-site
review of the proposed quarry site on January 4, 2006, and held a hearing on the issue that
same day.
They further aver that, upon conclusion of the hearing, the Review Board
unanimously voted to deny the development request as being incompatible with surrounding
uses. The decision was “made based on the on-site review and other evidence considered.”
Benton County Stone appealed the Review Board’s decision to the Benton County
Circuit Court on January 27, 2006, arguing that its proposed quarry was compatible with
surrounding uses. In the alternative, Benton County Stone argued that the standard of review
based upon “compatibility” was unconstitutionally void for vagueness. The circuit court
rejected Benton County Stone’s arguments and upheld the decision of the Review Board.
The
court also determined that the standard of compatibility in the ordinance was not so void as to
be unconstitutionally vague.1
Benton County Stone filed a timely notice of appeal, and it now
raises three arguments for reversal, none of which has merit.2
1
The circuit court also subsequently denied Benton County Stone’s motion for
reconsideration or for new trial.
2
When Benton County Stone filed its opening brief, its Addendum did not contain a
copy of the ordinance that it challenges. In response, appellees O.F. Duffield and others
argued that Benton County Stone’s appeal should be dismissed for failure to comply with
this court’s abstracting rules. Subsequently, Benton County Stone filed a motion to
supplement the Addendum and file a substituted brief. This court granted the motion on July
23, 2008, and on August 22, 2008, Benton County Stone filed its substituted brief
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Under Arkansas Code Annotated section 14-17-211 (Repl. 1998), appeals from final
action taken by
administrative, quasi-judicial, and legislative agencies concerned in the
administration of the county planning statutes “may be taken to the circuit court of the
appropriate county where they shall be tried de novo according to the same procedure
applicable to appeals in civil actions from decision of inferior courts, including the right of
trial by jury.”
Our standard of review of a circuit court’s finding following a bench trial is
whether that finding was clearly erroneous. Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872
(2000).
However, questions of statutory and constitutional construction are reviewed by this
court de novo. See Wilson v. Weiss, 370 Ark. 205, 258 S.W.3d 351 (2007); Hodges v.
Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999).
In its first point on appeal, Benton County Stone argues that the circuit court erred in
determining that the Benton County planning ordinance was not void for vagueness.
An
ordinance is presumed to be constitutional, and the burden of proving otherwise is on the
challenging party. Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998). A statute
will pass constitutional scrutiny under a “void for vagueness” challenge if the language conveys
sufficient warning when measured by common understanding and practice.
Night Clubs, Inc.
v . Fort Smith Planning Comm’n, 336 Ark. 130, 984 S.W.2d 418 (1999). However, a law is
unconstitutionally vague under due process standards if it does not give a person of ordinary
intelligence fair notice of what is prohibited and is so vague and standardless that it allows for
containing the ordinance in the Addendum.
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arbitrary and discriminatory enforcement.
Craft, supra. Stated another way, a statute must not
be so vague and standardless that it leaves judges free to decide, without any legally fixed
standards, what is prohibited and what is not on a case-by-case basis. Ark. Tobacco Control
Bd. v. Sitton, 357 Ark. 357, 166 S.W.3d 550 (2004).
Moreover, the subject matter of the challenged law also determines how stringently the
vagueness test will be applied. For instance, if the challenged law infringes upon a fundamental
right, such as liberty or free speech, a more stringent vagueness test is applied. Craft, supra
(citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)).
In contrast, if the law merely regulates business activity, a less stringent analysis is applied and
more flexibility is allowed. Id.
In this case, Benton County Stone argues that the Planning Board’s ordinance
concerning large scale plan requirements is void for vagueness.
Specifically, Benton County
Stone challenges the concept of “land use compatibility” as set out in the ordinance.
The
“Land Use Compatibility” portion of the “Site Development Requirements” contained in the
ordinance at section 2(B)(4) provides as follows:
A.
Development Patterns. Must be consistent and compatible with
existing development and the environment.
1)
Clustering.
Commercial and industrial developments are
encouraged to cluster to minimize incompatible land-use.
2)
Right to Farm. Any industrial and commercial development(s)
that could limit the viability of existing agricultural uses are
discouraged.
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3)
Right to Operate. Residential development that could limit the
viability of existing commercial and industrial operations are
discouraged.
Section 4(D)(2) then states that the Planning Board “may deny the application because of
noncompliance with items addressed in this code, incompatible development, protecting the
public safety and health, or any violation of an existing state and/or county law, regulation, or
ordinance.”
The circuit court determined that the terms “compatibility” or “incompatibility” were
“not so vague in this case as to be constitutionally void for vagueness[,] . . . especially . . .
where, as here, the County Planning Board’s discretion is limited by ordinance.”
Benton
County Stone, however, argues that the provisions set out above are unconstitutionally vague
because the concept of land use compatibility is “ambiguous and confusing.” It urges that the
concept of compatibility is “defined” by the three enumerated issues (i.e., clustering, right to
farm, and right to operate) and contends that this definition of compatibility is laid out only “in
terms of encouragement or discouragement . . . for and from certain uses.”
These three
enumerated factors, it argues, do not make compatibility a requirement, but the ordinance
nonetheless permits a permit to be denied on the basis of incompatibility.
This “contradictory”
language, Benton County Stone insists, renders the ordinance void for vagueness.
The question of whether a land-use statute or ordinance is void for vagueness was
discussed by the court of appeals in Rolling Pines Ltd. Partnership v. City of Little Rock, 73
Ark. App. 97, 40 S.W.3d 828 (2001), as follows:
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A statute violates the first essential of due process of law if it either forbids or
requires the doing of an act in terms so vague that persons of ordinary
intelligence must necessarily guess at its meaning and differ as to its
application. Anderson v . City of Issaquah, 851 P.2d 744 (Wash. App. 1993).
The purpose of the void for vagueness doctrine is to limit arbitrary and
discretionary enforcement of the law. Id. In the area of land use, a conditional
use standard must be sufficiently specific to guide both an applicant in
presenting his case and the Board in examining the proposed use. See Wakelin
v. Town of Yarmouth, 523 A.2d 575 (Me. 1987). In determining this issue, it
is permissible for a court to look not only at the face of the ordinance but also
at its application to the person who has sought to comply with the ordinance and
who is alleged to have failed to comply. Anderson v. City of Issaquah, supra.
Rolling Pines, 73 Ark. App. at 105, 40 S.W.3d at 834.
In Rolling Pines, supra, the City of Little Rock denied a conditional use permit to
Rolling Pines Limited Partnership, a developer who wanted to place manufactured homes in
a subdivision that had been zoned R-2, or single family use. The Little Rock Code granted the
City Planning Commission the authority to approve or disapprove conditional use permits after
a “detailed review of [the use’s] compatibility with the area.”
The Code further established
guidelines for evaluating applications for conditional use permits; among those guidelines was
a requirement that the “proposed land use is compatible with and will not adversely affect other
property in the area where it is proposed to be located.” Rolling Pines, 73 Ark. App. at 100,
40 S.W.3d at 831 (citing Little Rock Code § 36-107(2)).
After its application was denied, Rolling Pines appealed to the Little Rock City Board
of Directors, which upheld the Commission’s denial.
Rolling Pines then appealed to the
Pulaski County Circuit Court and argued, among other things, that the ordinance under which
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the permit was denied was so vague as to allow unbridled discretion in the Commission.
Id.
at 102, 40 S.W.3d at 102.
On appeal to the court of appeals, Rolling Pines continued its argument that the
ordinance was unconstitutionally void for vagueness.
The court of appeals disagreed,
concluding that the term “compatible” had a well-defined meaning and was not so vague as to
leave an applicant guessing as to its import or meaning. Id. at 106, 40 S.W.3d at 835 (citing
Anderson v. Peden, 568 P.2d 633 (Or. Ct. App. 1977) (holding that the word “compatible” was
not impermissibly vague because it has a plain and ordinary meaning that could be readily
understood by reference to a dictionary)).
Accordingly, the court of appeals concluded that
Rolling Pines had not established that the ordinance was unconstitutional. Id.
Similarly, in the instant case, the ordinance requires that the proposed development be
“consistent and compatible with existing development and the environment.”
“compatible” has a plain and ordinary meaning.
The word
The Oxford English Dictionary defines the
word as meaning “[m]utually tolerant; capable of being admitted together, or of existing
together in the same subject; accordant, consistent, congruous, agreeable.”
See Oxford
English Dictionary (2d ed. 1989), http://dictionary.oed.com/ (search “Find Word” for
“compatible”).
Likewise, according to the American Heritage College Dictionary, “compatible” means
“[c]apable of existing or performing in harmonious, agreeable, or congenial combination.”
See
American Heritage College Dictionary 284 (3d ed. 1997).
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That the ordinance goes on to discuss practices that are “encouraged” or “discouraged”
does not mean, as Benton County Stone suggests, that “compatibility” is “defined in terms of
a suggestion or preference.”
The court of appeals addressed a similar argument in Rolling
Pines, supra, in which the developer argued that the compatibility requirement in the challenged
ordinance was controlled by eight technical requirements specific to manufactured homes that
were set out in the city ordinance.
Rolling Pines contended that these technical requirements
“inherently contain a compatibility determination, meaning that if an applicant meets the eight
requirements, his proposed use is necessarily considered compatible with the surrounding
property.”
Rolling Pines, 73 Ark. App. at 103, 40 S.W.3d at 832.
The court of appeals
disagreed, noting that the eight requirements were, by their own definition, regarded as
minimum standards.
The court concluded that the “use of the term ‘minimum’ necessarily
implies that the [Little Rock Planning] Commission may consider matters over and above those
eight requirements in assessing a conditional use.” Id., 40 S.W.3d at 833.
Similarly, here, the ordinance provides that proposed development patterns “must be
consistent and compatible with existing development and the environment.”
(Emphasis added.)
The use of the word “must” makes this provision mandatory. See, e.g., Slusser v . Farm Serv.
Inc., 359 Ark. 392, 198 S.W.3d 106 (2004) (words or phrases that are generally regarded as
making a provision mandatory include “shall” and “must”).
We conclude that the three clauses
that follow the overarching “compatibility” requirement are to be considered as factors that
guide the exercise of the Review Board’s discretion.
As the circuit court correctly concluded,
their presence does not render the mandatory clause unconstitutionally vague.
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In its next argument, Benton County Stone urges that the circuit court erred in
determining that the Review Board operated under “discretionary restraints” in denying the
permit.
The circuit court’s opinion stated that the term “compatibility” was not so vague as to
be unconstitutional, “especially . . . where, as here, the County Planning Board’s discretion is
limited by ordinance.
Further, the record is replete with evidence that the County considered
the compatibility of Benton County Stone’s proposed quarry in the context of the ordinance’s
discretionary restraints.” Although Benton County Stone has set this contention out as a second
point on appeal, it relates to the point discussed above concerning whether the ordinance is
unconstitutionally vague.
When the circuit court mentioned “discretionary restraints” in its
order, it was essentially concluding that the ordinance does not grant unbridled discretion in the
Review Board. As concluded above, the circuit court did not err in this decision.
In its third point on appeal, Benton County Stone asserts that the trial court was required
to apply a strict construction of the planning ordinance.
See, e.g., Blundell v. City of West
Helena, 258 Ark. 123, 522 S.W.2d 661 (1975) (zoning ordinances, being in derogation of the
common law, are to be construed strictly); Rolling Pines, supra. However, given the language
used in the circuit court’s order, it is impossible to tell how the court construed the regulation.
The relevant paragraph of the court’s order reads as follows:
This de novo appeal by Benton County Stone (“BCS”) is denied. The term
“compatibility” or “incompatibility” is not so vague in this case as to be
constitutionally void for vagueness. Rolling Pines Ltd. Partnership v. City of
Little Rock , 73 Ark. App. 97, 40 S.W.3d 828 (2001). This is especially true
where, as here, the County Planning Board’s discretion is limited by ordinance.
Further, the record is replete with evidence that the County considered the
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compatibility of BCS’s proposed quarry in the context of the ordinance’s
discretionary restraints.
From this, it is not readily apparent that the court did not construe the regulation strictly.
The mere fact that Benton County Stone disagrees with the court’s conclusion does not mean
that the court applied anything other than a strict construction; further, Benton County Stone
points to nothing specific — other than stating that the trial court “made no indication as to
whether it strictly construed the ordinance” — that would support a conclusion that the court
did not so construe it. In short, Benton County Stone makes no compelling argument that, even
had the trial court strictly construed the ordinance, the ordinance would have been determined
to be void for vagueness.
Affirmed.
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