City of Lowell v. M & N Mobile Home Park, Inc.

Decision Date12 February 1996
Docket NumberNo. 95-521,95-521
Citation323 Ark. 332,916 S.W.2d 95
CourtArkansas Supreme Court
PartiesCITY OF LOWELL, et al., Appellants, v. M & N MOBILE HOME PARK, INC., Appellee.

Appeal from the Benton Chancery Court, No. E94-601-1; Donald R. Huffman, Judge.

Kevin J. Pawlik, Ella Maxwell Long, Bentonville, for appellant.

David R. Matthews, Rogers, for appellee.

DUDLEY, Justice.

This is a zoning case. Appellee M & N Mobile Home Park, Inc., purchased 7.19 acres of land in Lowell in 1971. Between 1971 and 1986, it operated a mobile-home park on slightly less than two of the acres. The other five acres remained unoccupied. In 1986, the city passed a zoning ordinance that designated the two acres as MHP, zoned for a mobile-home park, and designated the remaining five acres as R-1, for single-family dwellings. In 1994, appellee petitioned the planning commission to rezone the five acres to MHP so that it could utilize the full seven acres as a mobile-home park. The planning commission denied the application. Appellee appealed to the city council. The council upheld the commission. Appellee filed suit and asked the chancery court to rezone the five-acre tract to MHP because the action of the city council was arbitrary. The trial court granted the relief and rezoned the five acres as MHP. We reverse and dismiss.

I.
A. Constitutional Provisions

The powers of government are divided into three separate branches of government. Ark. Const. art. 4, § 1. The legislative power of state government is vested in the General Assembly with the right of the initiative and referendum reserved to the people. Ark. Const. amend. 7, § 1. The General Assembly can delegate the legislative power to enact ordinances to municipal corporations. Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785 (1904). We have written that when a municipality acts in a legislative capacity, it exercises a power conferred upon it by the General Assembly, and consequently, an act of a municipality is the co-equal of an act of the General Assembly. Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911). The General Assembly has given to municipal corporations the power to enact zoning ordinances. Ark.Code Ann. 14-56-402--14-56-425 (1987). A municipal corporation's exercise of its zoning power is the co-equal of an act by the General Assembly.

The legislative power includes discretion to determine the interests of the public as well as the means necessary to protect those interests. Within constitutional limits, the legislative branch is the sole judge of the laws that should be enacted for the protection and welfare of the people and when and how the police power of the State is to be exercised. Missouri & North Arkansas R.R. Co. v. State, 92 Ark. 1, 121 S.W. 930 (1909).

One branch of government shall not "exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted." Ark. Const. art. 4, § 2. For each branch to operate as constitutionally envisioned, one branch must not be subordinated to either or both of the other branches, and one branch must not take control of one or both of the other branches. The legislative branch has discretion to determine the interests of the public, but the judicial branch has the power to set aside legislation that is arbitrary, capricious, or unreasonable. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). This is a limited power, and the judiciary, in acting under this limited power, cannot take away the discretion that is constitutionally vested in a city's legislative body. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). The chancery court has subject-matter jurisdiction to determine whether a zoning enactment is arbitrary, capricious, or unreasonable. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994); City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981); Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971).

This court's foundation case involving zoning and the separation-of-powers doctrine is Herring v. Stannus, 169 Ark. 244, 275 S.W. 321 (1925). There we wrote:

[The city council's] action is final unless we can say that the council abused its discretion. But this discretion, in so far as a discretion abides, is vested in the council, charged by law with the duty of passing on the question, and does not rest in the courts which review the council's action.

. . . . .

The question is not what a member of the court might decide if the question were submitted to him as a matter of discretion, but rather is whether it can be said that the council abused its discretion, and we may not say that such was the case unless that fact clearly appears.

Id. at 256, 275 S.W.2d at 325 (citations omitted). In recent years, we have frequently written that the judicial branch does not have the authority to review zoning legislation de novo, as that would constitute an unconstitutional taking of the power of the legislative branch. See, e.g., Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983); City of Conway v. Conway Housing Authority, 266 Ark. 404, 584 S.W.2d 10 (1979).

B. The Pfeifer case

There was an aberration in our case law, which is set out only to show that it existed and that it has ended. Shortly after we correctly decided the foundation case of Herring v. Stannus, we decided City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925), and in essence, held that the review of zoning appeals could be by trial de novo rather than by solely determining whether the enactment by the legislative branch was arbitrary. The effect was to judge the wisdom of the enactment in violation of the separation-of-powers doctrine. We began to retreat from the Pfeifer doctrine in the 1953 case of Evans v. City of Little Rock, 221 Ark. 252, 253 S.W.2d 347 (1953), and backed further away from it in the 1966 cases of Downs v. City of Little Rock, 240 Ark. 623, 401 S.W.2d 210 (1966) and City of Little Rock v. Parker, 241 Ark. 381, 407 S.W.2d 921 (1966). The Pfeifer doctrine led to criticism. Morton Gitelman, Judicial Review of Zoning in Arkansas, 23 Ark.L.Rev. 22 (1969); Morton Gitelman, Zoning--The Expanding Business District Doctrine in Arkansas: An Obstacle to Land Use Planning, 28 Ark.L.Rev. 262 (1975). In Baldridge v. City of North Little Rock, 258 Ark. 246, 523 S.W.2d 912 (1975), we re-examined the Pfeifer doctrine and almost laid it to rest. See Robert R. Wright, Zoning Law in Arkansas, 3 UALR L.J. 421, 477 (1980). Finally, in City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981), we noted the many cases that "restricted, limited and modified the holding in Pfeifer," and said the case now has "little if any validity." Id. at 447-48, 619 S.W.2d at 669-70. In summary, we have returned to the foundational doctrine of Herring v. Stannus, which provides that the judicial department can set aside a legislative enactment only when the legislative branch has abused its discretion in an enactment because of arbitrariness.

C. Standard of Review
1. Presumption of Validity

In reviewing cases involving legislative enactments, such as zoning ordinances, there is a presumption that the legislative branch acted in a reasonable manner, and the burden is on the moving party to prove that the enactment was arbitrary. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). In Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971), we quoted with approval from Little Rock Railway & Electric Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911), as follows:

It is only an arbitrary abuse of the power which the courts should control; and when the exercise of that power and discretion is attacked in the courts, a presumption must be indulged that the council has not abused its discretion, but has acted with reason and in good faith for the benefit of the public. To proceed upon any other theory would be to substitute the judgment and discretion of the courts for the judgment of the members of the council with whom the lawmakers have seen fit to lodge this power.

Id. at 227, 142 S.W. at 166. This presumption is a presumption of law and not merely an inference of fact. See Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968).

2. Rational Basis

The chancery court has a limited function in reviewing legislation. It acts not as an ordinary court of equity, but instead acts only to determine whether the legislative action was arbitrary, capricious, and unreasonable. City of Batesville v. Grace, 259 Ark. 493, 534 S.W.2d 224 (1976). We recently defined "arbitrary" and "capricious" in City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994), as follows: Arbitrary is "decisive but unreasoned action," and capricious is "not guided by steady judgment or purpose." The definition most easy to apply was given in City of Little Rock v. Breeding, 273 Ark. 437, 445, 619 S.W.2d 664, 668 (1981), when we said that the enactment was not arbitrary if there was any reasonable basis for its enactment.

3. The Bentley case

In appellate review of ordinary equity cases there are two different components of the chancellor's ruling that are considered. The appellate court will not set aside a chancellor's finding of fact unless it is clearly erroneous. This deference is granted because of the regard the appellate court has for the chancellor's opportunity to judge the credibility of the witnesses. Ark.R.Civ.P. 52. However, a chancellor's conclusion of law is not entitled to the same deference. If a chancellor erroneously applies the law and the appellant suffers prejudice, the erroneous ruling is reversed. Manifestly, a chancellor does not have a better opportunity to apply the law than does the appellate court.

In an early zoning case, which was actually determined on appeal by a chancellor's finding of fact, we wrote that the "findings of...

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