City of Little Rock v. Sunray DX Oil Co.

• Decision Date: 01 April 1968
• Docket Number: No. 5--4238,5--4238
• Citation: 425 S.W.2d 722,244 Ark. 528
• Parties: CITY OF LITTLE ROCK, et al., Appellants, v. SUNRAY DX OIL COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 722

425 S.W.2d 722

244 Ark. 528

CITY OF LITTLE ROCK, et al., Appellants, v. SUNRAY DX OIL COMPANY, Appellee.

No. 5--4238.

Supreme Court of Arkansas.

April 1, 1968.

Perry V. Whitmore, and Rose, Meek, House, Barron, Nash & Williamson, by A. F. House, and Lester & Shults, Little Rock, for appellants.

House, Holmes & Jewell, by Darrell D. Dover, Little Rock, for appellee.

G. DAVID WALKER, Special Justice.

The issue in this case is the correct zoning classification of property situated at the Northeast Corner of the intersection of Kavanaugh and Oak Streets in Little Rock which was formerly the homestead of two prominent Little Rock citizens, the late Mr. & Mrs. J. F. Loughborough. Appellants contend that the property is properly classified as 'D', Apartment, and appellee contends that the proper designation is 'F', Commercial.

At the outset it should be pointed out that this is not a rezoning case. All parties acknowledge that the original zoning of the property in question has not been legally changed. The question for determination is how the property was originally zoned.

The difficulty arises out of the manner in which the various classifications were depicted upon the 'District Map' which was adopted in the original Zoning Ordinance of the City of Little Rock in 1937. The respective classifications were established only by being shown on this map in different colors, which were apparently placed on the map with an ordinary crayon. It would appear that the best judgment was not used in choosing the contrasting colors because, to some eyes at least, there appears to be a minimum of difference between the shadings of the different classifications. The passage of time has rendered this difference more difficult to distinguish.

On June 19, 1937, the original Zoning Ordinance of the City of Little Rock was published in the Arkansas Gazette together with a reproduction of the District Map. Since the colors could not be reproduced in the newspaper print, the zoning classifications were shown by cross hatching or different slantings of lines on the published map. On this published map the zoning of the property in question was shown as 'D', Apartment District.

In 1950 the City of Little Rock adopted Ordinance 8489 which recited:

'Whereas, the original Zoning Map of the City of Little Rock has become worn and unusable, and

'Whereas, the City has purchased three copies of the Bagley map of the City of Little Rock upon which the zoning of all property has been designated, which zoning has been verified by the Planning Commission,

* * * 'The three copies of the Bagley map now owned by the City of Little Rock and upon which has been transcribed the present zoning of all property and land within the City of Little Rock are hereby approved and adopted as the official Zoning Map of the City.'

The Bagley map so adopted consists of two books in which various tracts or portions of the City are shown as separate sheets which can be removed or redrawn as zoning changes take place. The Bagley map showed the property in question as 'F', Commercial District.

In 1964 this property was placed upon the market and the appellee, Sunray DX Oil Company, became interested in purchasing it as a filling station site. It inquired of Mr. Henry M. DeNoble, Director of the Department of Community Development of the City of Little Rock, which is the department in charge of zoning matters, as to the correct classification of the property and on August 24, 1964, Mr. DeNoble wrote a letter to appellee advising that the property was zoned 'F', Commercial District. After receipt of this letter appellee immediately consummated purchase of the property.

Shortly thereafter appellee applied for a building permit to commence construction of the proposed filling station. This application was denied on the sole ground that the property was zoned 'D', Apartment District, and use for filling station was prohibited. It is stipulated that the application for building permit was otherwise proper and the permit should have been issued if the property was classified 'F', Commercial District, being a proper use under that classification.

It appears that after his letter of August 24, 1964, Mr. DeNoble made some investigation of the matter and decided that the Bagley map was incorrect and thereupon undertook to revise the map to set forth his determination. This was done after appellee's purchase and apparently without any knowledge of or notice to appellee. In oral argument it was admitted that Mr. DeNoble had authority to make such changes only in the event of action by the zoning authority and that his attempted revision of the map was unauthorized.

When the building permit was refused, appellee instituted the present suit praying a mandatory injunction directing the City and its agents to issue the building permit and restraining the City and its agents from interfering with appellee's use for the property for the construction and maintenance of a filling station. Numerous property owners with residences in the vicinity of the property intervened in opposition to appellee's petition. The Chancellor ruled in favor of appellee and issued the...