Blundell v. City of West Helena
| Decision Date | 19 May 1975 |
| Docket Number | No. 75--22,75--22 |
| Citation | 258 Ark. 123,522 S.W.2d 661 |
| Parties | Joseph B. BLUNDELL, Jr., Appellant, v. CITY OF WEST HELENA, Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
David Solomon, Helena, for appellant.
Ralph C. Murray, West Helena, for appellee.
This appeal brings into sharp focus the conflict between private property rights and the right of municipal government to control the owner's use of property. The particular question is the extent to which an owner has freedom to the use of his property after the adoption of a zoning ordinance which results in the use not being in conformity with uses permitted in the area in which it is located. The particular question is without precedent in this state and it presents the usual difficulties experienced in achieving the appropriate balance between the right of an individual to free use and enjoyment of his property and equally important rights of society in the interest of the public welfare.
On August 3, 1965, appellant purchased a five-acre tract of land lying along Springdale Road between the city limits of Helena and those of West Helena. In 1966, he began developing the tract as a mobile home park. The topography of the tract was such that development was started on the east side, where 12 mobile home spaces were first laid out, after which a 20-foot road to serve these lots and 13 others was constructed and the 13 additional spaces were laid out on the west side of this road. The ground level was much lower west of these spaces and a septic tank to serve these 25 spaces was placed in this area.
Sometime in October, 1966, the first mobile home was placed on one of the first 12 lots. Water was available to these lots by a connection to the Helena water system. Electricity was also available. Problems developed with reference to the sewer system and the state health authorities restricted occupancy to no more than four mobile homes with the existing sewer system and recommended connection to a city sewer system. Appellant found the cost of connection to the Helena sewer system prohibitive and no West Helena sewer lines were available.
Sometime in 1968, appellant employed Cline-Frazier Consulting Engineers, who completed detailed plans in June, 1968, for further development of appellant's property, which was then named Springdale Village Trailer Park, and was to consist eventually of a total of 44 lots. These plans were submitted to the Arkansas State Board of Health on June 13, 1968, and approved by its Bureau of Environmental Engineering on June 17, 1968.
On February 17, 1969, the County Court annexed appellant's property, with other lands, to the City of West Helena and the order of annexation was finally affirmed here on February 22, 1971. See Kalb v. City of West Helena, 249 Ark. 1123, 463 S.W.2d 368. On December 8, 1971, the City of West Helena adopted Ordinance 1020 to govern zoning in the annexed area. By this ordinance, this property of appellant Blundell was classified as 'Residential R--A' making its use as a mobile home park non-conforming because such parks are permitted only in commercial zones in West Helena. West Helena sewer lines had been extended to the property in September 1971, and appellant granted the city a 20-foot easement for these lines. He then disconnected his septic tank system and made connection with the city sewer line. After continued development of the property, Blundell's application to the City of West Helena for a permit for an electrical connection, i.e., for the placing of a meter and furnishing of electricity on one of the first 25 lots laid out, but not one of the first 12, was rejected in January 1974, on the ground that this would be an extension of a non-conforming use. Blundell then brought this suit to require the issuance of the permit and to establish his right to continue his development of his entire tract of land, or in the alternative, the first 25 lots, as a mobile home park.
The chancery court resolved the conflict in favor of the community's interest in public welfare and development and against Blundell's interest in the use of his property, denying him any relief and holding that the extension of the use of the facilities beyond the first 12 lots would be an impermissible extension of a non-conforming use. We disagree with the learned chancellor as to the particular space involved and as to all the first 25 lots but not as to any contemplated use of the remainder of the property for mobile home spaces.
The chancellor is to be commended for his exhaustive study of legal authorities and of the record. As a result the issues are brought into sharp focus. Portions of his opinion set out pertinent facts and issues. Among other things, he said:
. . . it is apparent that plaintiff purchased this five-acre tract with the intention of utilizing all of it as a trailer park to accommodate some forty-four trailers. All his actions in employing engineers to plan and advise and prepare a plat for that development confirm this. At the time his land was annexed and zoned by the City of West Helena . . . he had only four or five lots actually in use for the intended purpose. His delay in extending further by that time was due in part to difficulty encountered with septic tank systems and financial inability to connect with existing sewer lines. Whatever the reason, the fact remains that at the time of the enactment in question his actual use was thus limited and he has extended that use since that date to include 12 such lots, all located on a line extending north and south along his east line . . .
It is plaintiff's position that his purpose at the time of purchase coupled with investment of funds in his contemplated expansion extends his use to the full limit of the tract. It is the position of the city that he is limited to the area actually appropriated for that use at the time of the enactment.
These basic concepts are not seriously questioned here. What plaintiff does question here is the power of the City to restrict his prior use to the area of actual use prior to the enactment. It is his position that the City cannot so restrict him but must under the ordinance and the circumstances permit him to enlarge his use to the full limits of his tract; that his actual appropriation of a part of the tract for this use prior to the enactment, coupled with his contemplated full use and expenditures give him that right.
. . . (T)he vast weight of authority supports the sounder view that the purpose of all such legislation is to channel the growth and development of the community for the best interest of all its citizens, and that prohibited uses, though permitted to remain, should be diminished, restricted and discouraged rather than nurtured and expanded.
The courts appear to be in agreement that this intention and purpose must be found within the particular enactment and if clearly stated therein should be given effect in accomplishing that purpose to the extent therein expressly provided.
The courts appear to be in universal agreement that such legislation, being in derogation of common law, must be construed most strictly in favor of the landowner in every respect, including the determination of the restriction and its extent.
We differ with the chancellor very little as to the principles he stated. The real basis of our difference is in the application of these principles to the facts in the case. The chancellor's opinion is bottomed to a great extent upon language of the West Helena zoning ordinance relating to non-conforming uses. Pertinent provisions are as follows:
Section 2. Definitions M--Non-conforming. A building or a use of land existing at the time of enactment of this Ordinance, and which does not conform to the regulations of the District or the Zone in which it is situated.
Section 18. Non-conforming Use and Structures.
A. Any non-conforming structure or portion thereof declared unsafe by proper authorities may be restored to a safe condition after being recommended by the Planning Commission and approved by the City Council.
B. Any non-conforming structure may not be reconstructed or structurally altered during its life to an extent exceeding an aggregate cost 66% of the appraised value at the time of the construction of the building, unless said building is changed to a conforming use.
C. No structure damaged by fire or other causes to the extent of more than 66% of its fair sales value immediately prior to damage shall be repaired or rebuilt excepting to conform to the regulation of this Ordinance.
A. A non-conforming use shall not be extended, but the extension of a lawful use to any portion of a non-conforming structure which existed prior to the enactment of this Ordinance shall not be deemed an extension of such non-conforming use.
A. Whenever a non-conforming use has been discontinued for a period of six (6) months, such use shall not thereafter be reestablished, and any future use shall be in conformity with the provisions of this Ordinance.
The chancellor emphasized the language in the ordinance relating to non-conforming structures, but we place emphasis upon the title of Section 18 designating use and structures separately and the fact that only an extension of non-conforming use is prohibited. Likewise, we do not attach the significance the chancellor did to the provisions relating to discontinuance of a non-conforming use, because the facts, as we see them, do not disclose any such discontinuance of use in this case.
Let it be clearly understood that we do not consider that either the intention of the landlord to use the property for a mobile home park or the development of plans for doing so is sufficient to establish a permissible non-conforming use.
The first 25 spaces were actually levelled and laid out and the road between them...
To continue reading
Request your trial
-
City of Fayetteville v. S & H, Inc.
...achieving the desire by a shorter cut than the constitutional way of paying for the change.' " Likewise in Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975), we had before us a non-conforming use of a mobile home park. In stating the issue and in discussing the rights of ......
-
State v. McIlroy, 79-320
...Ark. 148, 547 S.W.2d 94; Arkansas State Highway Com'n. v. Turk's Auto Corp., Inc., 254 Ark. 67, 491 S.W.2d 387; Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661; Poole v. State, 244 Ark. 1222, 428 S.W.2d 628; City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486; Sheet M......
-
Gackler Land Co., Inc. v. Yankee Springs Tp.
...305 Mich. 666, 9 N.W.2d 885 (1943); Co. Bd. of Comm'rs v. Petsch, 172 Neb. 263, 268, 109 N.W.2d 388 (1961); Blundell v. West Helena, 258 Ark. 123, 131, 522 S.W.2d 661 (1975). We further note that in Patchak and Blundell only that portion of the tract clearly used for trailer park purposes w......
-
Carmical v McAfee
...are in derogation of the common law, we must strictly construe them in favor of the property owner. See Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975); City of Little Rock v. Andres, 237 Ark. 658, 375 S.W.2d 370 (1964). However, although zoning ordinances must be stric......