Camden Community Development v. Sutton et al

• Court: Arkansas Supreme Court
• Writing for the Court: Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Beverly W. Cutler; PER CURIAM; Cutler
• Citation: Camden Community Development v. Sutton et al, 5 S.W.3d 439, 339 Ark. 368 (Ark. 1999)
• Decision Date: 02 December 1999
• Docket Number: 99-258
• Parties: CAMDEN COMMUNITY DEVELOPMENT CORPORATION v. Mary Jo SUTTON, Velma McBeth Slaughter, and Josh Colvert, as Ouachita Board of Election Commission; and Mildred McKinney, Mary Bennett, and Deborah Porchia, as Individuals on Behalf of the Fairview Community Defense Committee 99-258 ___ S.W.3d ___ Opinion delivered

CAMDEN COMMUNITY DEVELOPMENT CORPORATION v Mary Jo SUTTON, Velma McBeth Slaughter, and Josh Colvert, as Ouachita Board of Election Commission; and Mildred McKinney, Mary Bennett, and Deborah Porchia, as Individuals on Behalf of the Fairview Community Defense Committee

99-258 ___ S.W.3d ___

Opinion delivered December 2, 1999

Supreme Court of Arkansas

Appeal from Ouachita Circuit Court; Larry Chandler, Judge; affirmed.

1. Constitutional law -- Ark. Const. amend. 7 -- local legislation cannot contravene general laws. -- The provisions of Amendment 7 to the Arkansas Constitution reflect the principle that no local legislation may be enacted that contravenes general laws.

2. Constitutional law -- initiative & referendum -- initiated action may only address legislative actions. -- An initiated action may be used only to address legislative actions.

3. Constitutional law -- difference between legislative & administrative action -- test for determining. -- Both legislative and executive powers are possessed by municipal corporations; the crucial test for determining what is legislative and what is administrative is whether the ordinance is one making a new law, or one executing a law already in existence; executive powers are often vested in the council or legislative body and exercised by motion, resolution, or ordinance; executive action evidenced by ordinance or resolution is not subject to the power of the referendum, which is restricted to legislative action as distinguished from mere administrative action; the form or name does not change the essential nature of the real step taken.

4. Municipal corporations -- right to enact legislation -- may not be delegated. -- Legislative bodies may delegate the power to make administrative rules but under most circumstances may not delegate the right to enact legislation, nor can city directors delegate or bargain away their legislative authority.

5. Constitutional law -- initiative & referendum -- trial court's finding that rezoning issue was not subject to initiated action not erroneous. -- The supreme court held that the trial court's findings that issues concerning whether to rezone were administrative, not legislative, decisions and thus not subject to the initiative process were not erroneous where the appellate court determined that the facts of the case did not reflect any legislative action by the City Board; and where the appellate court noted note that the City Board's decision not to accept the Commission's administrative proposal was only a rejection of proposed administrative action and did not constitute any legislative action or administrative action by the City Board; accordingly, because legislative action was not taken by either the Commission or the City Board, the rezoning issue was not subject to an initiated action by the people pursuant to Ark. Const. amend. 7.

6. Constitutional law -- legislative or administrative action -- analysis. --An analysis of whether an action is legislative or administrative is essential to a determination whether the powers of initiative and referendum can be exercised; if the action of the local instrumentality is administrative in nature, no right of initiative is available; if the action is legislative action, Ark. Const. amend. 7, subject to restrictions imposed by the constitution, general laws, and the amendment itself, would allow an initiative; specifically, Amendment 7 declares that "no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith."

7. Elections -- initiative & referendum -- powers do not extend to administrative actions. -- The powers of initiative and referendum reserved to the people by Ark. Const., amend. 7, do not extend to administrative actions.

8. Elections -- initiative & referendum -- restrictions imposed by Ark. Const. amend. 7 not applicable to power of city board to engage in administrative action of spot zoning. -- Spot zoning as approved by the Commission in this case is administrative in nature and therefore may not be addressed by an initiated act; however, the restrictions imposed by Ark. Const. amend. 7 do not apply to the power of the city board to engage in the administrative action of spot zoning.

9. Appeal & error -- conflicting obiter dicta -- earlier opinion overruled to limited extent. -- The supreme court clarified, modified, and overruled any observations in obiter dicta in Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971), to the extent that they might have been in conflict with the court's holding in this opinion.

10. Appeal & error -- misplaced authority -- trial court did not err in finding case relied upon by appellant inapposite. -- Where the holding in City of Russellville v. Banner Real Estate, 326 Ark. 673, 933 S.W.2d 803 (1996), did not address the question whether administrative decisions of a local nature may be resolved by an initiated petition pursuant to Ark. Const. amend. 7, appellant's reading of the opinion and arguments derived therefrom were misplaced, and the trial court did not err in finding that the holding in the case did not authorize rezoning by initiated act.

11. Appeal & error -- burden of obtaining ruling on appellant -- unresolved matters waived. -- The burden of obtaining a ruling is on the movant; objections and matters left unresolved are waived and may not be relied upon on appeal.

12. Appeal & error -- abstracting deficiencies -- seven justices will not scour one record. -- All material information must be included in the abstract; the supreme court will not be placed in the position of having seven justices scour the one record for the absent information.

Harrell & Lindsey, P.A., by: Paul E. Lindsey, for appellant.

Bowden, Kendel & Jones, PLLC, by: David O. Bowden; and Ivory Law Firm, by: George S. Ivory, Jr., for appellees.

Ray Thornton, Justice.

In 1998, appellant, Camden Community Development Corporation, sought permission to rezone its property from a zoning category of RS-2 (residential) to a zoning category of M-2 (manufacturing). The City of Camden Planning Commission (the Commission) recommended appellant's proposal to the Board of Alderman of the City of Camden (the City Board). On September 8, 1998, the proposal failed to be adopted by the City Board.

After the City Board's failure to approve the proposed rezoning, appellant circulated an initiated petition seeking to put the issue on the November ballot. Appellant's petition for rezoning of its property was certified to be placed on the ballot for the November general election.

On October 12, 1998, appellees, Mildred McKinney, Mary Bennett, and Deborah Porchia, on behalf of the Fairview Community Defense Committee, filed suit in the Ouachita County Circuit Court against appellees, Mary Jo Sutton, Velma McBeth Slaughter, and Josh Colvert, as members of the Ouachita Board of Election Commission, seeking to remove the initiative from the ballot. On October 14, 1998, appellant filed a motion to intervene in the matter.

On October 27, 1998, a hearing on the matter was held. The trial court defined the issue in the case as "whether zoning and/or rezoning of property can be accomplished through an initiated act when there is in place a comprehensive planning and zoning code." On November 30, 1998, the trial court found that "issues concerning whether to rezone are administrative decisions, not legislative, and thus are not subject to the initiative process." The findings of the trial court were returned too close to the election to remove the measure from the ballot, and the voters rejected the measure. Because the issues raised are likely to recur, we accept the case and affirm the trial court.

Appellant contends that the trial court erred when it did not allow rezoning by initiative pursuant to the initiative and referendum powers granted to the people by Amendment 7 to the Constitution of Arkansas and raises three point on appeal. ¹ Wefirst consider the statutory provisions granting municipalities authority to adopt zoning plans, ordinances, and regulations. Specifically, Ark. Code Ann. § 14-56-422 (Repl. 1998) provides:

[A]ll plans, recommended ordinances, and regulations shall be adopted through the following procedure:

(1)(A) The planning commission shall hold a public hearing on the plans, ordinances, and regulations proposed under this subchapter.

(B) Notice of public hearing shall be published in a newspaper of general circulation in the city, at least one (1) time fifteen (15) days prior to the hearing.

(2) Following the public hearing, proposed plans may be adopted and proposed ordinances and regulations may be recommended as presented, or in modified form, by a majority vote of the entire commission.

(3) Following its adoption of plans and recommendation of ordinances and regulations, the commission shall certify adopted plans or recommended ordinances and regulations to the legislative body of the city for its adoption.

(4) The legislative body of the city may return the plans and recommended ordinances and regulations to the commission for further study or recertification or, by a majority vote of the entire membership, may, by ordinance or resolution, adopt the plans and recommended ordinances or regulations submitted by the commission. However, nothing in this subchapter shall be construed to limit the city council's authority to recall the ordinances and resolutions by a vote of a majority of the council.

(5) Following adoption by the legislative body, the adopted plans, ordinances, and regulations shall be filed in the office of the city clerk. The city clerk shall file, with the county recorder of the counties in which territorial jurisdiction is being exercised such plans, ordinances, and regulations as pertain to the territory beyond the corporate limits.

Id....