City of Little Rock v. Southwest Builders, 5-564
| Decision Date | 28 March 1955 |
| Docket Number | No. 5-564,5-564 |
| Citation | 276 S.W.2d 679,224 Ark. 871 |
| Parties | CITY OF LITTLE ROCK et al., Appellants, v. SOUTHWEST BUILDERS, Inc., Appellee. |
| Court | Arkansas Supreme Court |
O. D. Longstreth, Jr., Dave E. Witt and Moore, Burrow, Chowning & Mitchell, Little Rock, for appellants.
H. B. Stubblefield, Little Rock, for appellee.
By its complaint in this case the appellee seeks to compel the city of Little Rock to issue a building permit for the construction of a $28,500 residence on Lot 23 in Edgehill Addition. The city defends its refusal to grant the permit on the ground that the proposed construction would violate the municipal zoning ordinance. The principal defense, however, is interposed by several neighboring property owners who intervened in the case. The intervenors contend that any construction at all upon Lot 23 is prohibited by the original plat and bill of assurances for the addition. The chancellor rejected both defenses and granted the relief sought.
We consider first the contentions of the intervenors. In 1926 Edgehill was dedicated as a restricted residential district. This is the pertinent language of the bill of assurances that accompanied the plat of the addition:
'All plots or lots in said Addition when sold shall be subject to the following restrictions:
'(a) All plots in said Addition shall be restricted to single family residences only.
* * *
* * *
The intervenors' argument centers upon the fact that Lot 23 occupies a unique position in the addition, in that it is the only lot for which the plat shows no front building line. We insert a simplified sketch of enough of the plat to show how the building lines were terminated before reaching Lot 23.
Quite apart from certain oral evidence that will be mentioned later, the intervenors insist that the plat and bill of assurances were alone sufficient to prohibit all construction upon Lot 23. Their argument is this: The bill of assurances forbids the erection of any structure closer to the street than the front building lines shown on the plat. The plat shows no building line whatever for Lot 23. It follows, say the intervenors, that all construction upon that lot is forbidden.
We do not find this argument persuasive. If we look to the plat alone, the fact that the building lines were not carried into Lot 23 creates at most an ambiguity. It could be inferred that the absence of a building line was intended to prohibit the act of building, but it might also be supposed that the absence of this line implied a corresponding absence of the restriction that the lines were designed to impose. The latter conclusion is supported by the practical consideration that residential additions are ordinarily dedicated with a view to the development of the property rather than for the purpose of perpetuating the land as vacant lots. Although the plat discloses that Lot 23 is the smallest lot in Edgehill, the lot comprises more than 8,000 square feet and is certainly sufficient to accommodate a one-family residence.
Any doubt that might arise from the plat is dispelled by a study of the accompanying bill of assurances. We have quoted the brief reference to building lines, but this really does nothing except to put into words what the plat expresses pictorially. If the proprietors of the addition meant for Lot 23 to remain a useless piece of ground for the indefinite future, one would expect--indeed, a prospective purchaser would have the right to expect--that this intention be declared in plain language. Yet nowhere in the bill of assurances is Lot 23 singled out from the other forty-one lots in the subdivision. It is declared, for example, that all lots shall be subject to the various restrictions, one of which is that no lot shall contain more than one residence. Thus the bill of assurances strongly confirms the view that all the lots were dedicated for building purposes and contains not a syllable of warning that Lot 23 was to remain unimproved.
The intervenors were allowed to introduce parol evidence to show that the dedicators of Edgehill did not intend for Lot 23 to be used as a residential site and to show that the intrusion of a house upon this relatively small lot would be aesthetically out of harmony with the neighborhood, even to the point of reducing property values in the vicinity. It is not contended that the proprietors' undisclosed intention would bind the public at large. Rather, it is argued that the appellee bought with notice of the proprietors' true intention, since its president had been informed before the purchase that there was some controversy about the right to build on the lot. Even so, the intervenors' protest is not helped by this proof. A complete investigation by the appellee might have uncovered the dedicators' unexpressed plans for Lot 23, but it would also have disclosed that those dedicators had long since sold the lot and were therefore powerless to correct the original oversight. Thus when the appellee invested $8,500 in the purchase of Lot 23, it did so merely with notice that its right to build involved a disputed question of law. That one buys property with notice of a legally doubtful claim does not preclude him from asserting its invalidity.
In the absence of a restriction imposed by contract the appellants' objections, whether aesthetically sound or not, must find support in the zoning ordinance, which brings us to the city's contentions. The zoning law requires that back yards in a district such as this be at least 25 feet in depth, and it is contended that the appellee's application for a building permit contemplated a slightly smaller back yard for the proposed residence. The chancellor would have been justified in holding that this contention had been abandoned during the trial, but in any event the defect was cured by the decree, which approved a revised plan that conforms to the ordinance. Any inconvenience that the city may have suffered can be corrected by awarding the city its costs, which have been nominal.
Also cited is this provision in the zoning law: 'Where lots comprising forty per cent or more of the frontage are developed with buildings having an average front yard with a variation in depth of not more than six feet no building hereafter erected * * * shall project beyond the average front yard line so established.' The proof is that on the north line of the block now in question Lots 15 and 17 were first improved, that they constitute more than 40 per cent of the north frontage, and that their front yards are respectively 65 and 57 feet in depth. It is said that these facts establish an average depth of 61 feet, that neither Lot 15 nor Lot 17 varies from the average by as much as 6 feet, and that therefore the appellee cannot build within 20 feet of the street, as the ordinance would otherwise permit. It is hard to be sure what this brief excerpt from the ordinance means by 'the frontage' or by 'an average front yard.' It is plain, however, that the ordinance specifies a variation in depth and not, as the city would have it, a variation from the average depth. Since the actual variation between the front yards of Lots 15 and 17 is more than 6 feet, it cannot be said that these pioneer houses established a line having that degree of uniformity which the ordinance requires.
Affirmed.
McFADDIN, J., not participating.
So strongly do I feel that a grave injustice is being done the property owners in this restricted residential addition, that I am impelled to dissent.
In 1926, the owners platted Edgehill Addition to the City of Little Rock and on May 7th of that same year filed and had recorded the above plat and along with it (on the same day) a bill of assurance. This addition contains 42 lots and the smallest plot 23, involved here, has an area of 8,000 sq. ft., while the next smallest has an area of 25,000 sq. ft. Each plot is limited to one residence to cost not less than $15,000 and no residence can be built less than 40 ft. from the curb line of the street on which the building fronted as I interpret the plat. All the present homes in the addition have complied with this restriction, some as far back as 80 ft., and all of them at a greater distance than 40 ft. from the street. The bill of assurance recites, among other things, that the owners of the property 'have caused the same to be surveyed into plots, streets, roads, parks, and easements as shown on the Plat or Map hereto annexed and made a part thereof:' that 'said Addition as laid off shall be composed of plots or lots numbered as follows * * * 14 to 39 inclusive * * *;' that 'all conveyances of any plot or lot mentioned on said Plat or Map shall carry the fee thereof to the boundaries thereof * * * and shall be made subject to all the restrictions, conditions, limitations, and reservations and easements shown on said Plat or Map or mentioned in this instrument and the purchaser of such plot or plots or part thereof shall take title to the same subject to all such restrictions, conditions, limitations, and reservations whether mentioned in the deed of conveyance or not and said restrictions shall and are hereby deemed to be made for the benefit of the grantors herein, their heirs and assigns, and all owners of and persons having an interest in any of the plots or lots included within said Addition. * * *
'All lots or plots in said Addition, when sold, shall be subject to the following restrictions:
'(A)...
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