Benton County Stone Co. v. Planning Bd.

• Decision Date: 30 October 2008
• Docket Number: No. 08-291.,08-291.
• Citation: Benton County Stone Co. v. Planning Bd., 288 S.W.3d 653, 374 Ark. 519 (Ark. 2008)
• Parties: BENTON COUNTY STONE CO., INC., Appellant, 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, Appellees.
• Court: Arkansas Supreme Court

288 S.W.3d 653

374 Ark. 519

BENTON COUNTY STONE CO., INC., Appellant, 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, Appellees.

No. 08-291.

Supreme Court of Arkansas.

October 30, 2008.

The Watkins Law Office, PLLC, Rogers, 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., Springdale, by: Chris Lisle, for appellees O.F. Duffield, Sue Ann Duffield, Frederic Dohle, Katherine Dohle, Richard Lubera, Jr., Karen Lubera, and Mike Wishon.

ELANA CUNNINGHAM WILLS, Justice.

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 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

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 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, 102 S.Ct. 1186, 71 L.Ed.2d 362 (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.

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:

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, 70 Wash. App. 64, 851 P.2d 744 (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 the permit was denied was so vague as to allow unbridled discretion in the Commission. Id. at 102, 40 S.W.3d at 832.

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...