City of Russellville v. Banner Real Estate

• Court: Arkansas Supreme Court
• Writing for the Court: NEWBERN
• Citation: City of Russellville v. Banner Real Estate, 326 Ark. 673, 933 S.W.2d 803 (Ark. 1996)
• Decision Date: 25 November 1996
• Docket Number: No. 96-142,96-142
• Parties: CITY OF RUSSELLVILLE, Appellant, v. BANNER REAL ESTATE, Appellee.

Page 803

933 S.W.2d 803

326 Ark. 673

CITY OF RUSSELLVILLE, Appellant, v. BANNER REAL ESTATE, Appellee.

No. 96-142.

Supreme Court of Arkansas.

Nov. 25, 1996.

James Dunham, Donald Bourne, Russellville, for appellant.

John Harris, Russellville, for appellee.

NEWBERN, Justice.

This is a zoning case. The issue is whether a city council may, upon oral motion, adopt a rezoning ordinance which differs from one proposed by the city's planning commission. We reverse the Chancellor's decision awarding a partial summary judgment, the effect of which was to preclude the city council from doing so.

The City of Russellville petitioned the Russellville Planning Commission to rezone certain property facing Twelfth Street in Russellville from category C-4, quiet commercial, to category R-1, single family dwellings. The tract under consideration included property owned by the appellee, Banner Real Estate, a partnership. The petition proceeded before the Russellville Planning Commission where public hearings were held. The Commission's recommendation was that the tract be rezoned, with portions of it to become R-1 and other portions R-2. The R-2 category permits construction of apartments. The Banner property is located in the part of the tract recommended by the Commission for R-2 rezoning.

The resulting Ordinance 1474, as adopted by the Council, differs from the Commission proposal. While the Council did as the Commission had recommended by rezoning the land which had previously been zoned C-4 to R-1 and R-2, the line between the two resulting R-category portions of the property was drawn differently by the Council so as to make part of Banner's property R-2 and part of it R-1, rather than all of the Banner property being rezoned R-2 as recommended by the Commission. The change came about as the result of an oral motion by a councilman after the third reading of ordinance which, as proposed, accorded with the Commission's recommendation.

Banner brought suit in Pope Chancery Court to have Ordinance 1474 declared void. It contended the Ordinance was invalid because the precise manner of drawing the R-1--R-2 line, as a result of the orally proposed modification, had not been shown on any map or in writing prior to its adoption. It was contended that Banner's right to due process of law was violated as members of the public had not been allowed to address the ordinance as it appeared in the form ultimately adopted.

Banner moved for a partial summary judgment. The motion was granted. There apparently were other claims in this litigation which were not adjudicated. The Chancellor entered a proper order certifying the partial summary judgment for appeal in accordance with Ark. R. Civ. P. 54(b).

In Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983), we held invalid an attempt by a city council to enact a rezoning ordinance. A city council had rezoned property without the request having been considered by the city's planning commission. We noted that the state law would have permitted the city council to do as it did, but that, because there had been no compliance with the procedure specified by the city's zoning ordinance requiring submission of the proposed rezoning to the planning commission, the ordinance was invalid. At the outset of our opinion, we pointed out that a city has no authority to legislate other than that granted by the state. It is thus clear that zoning authority must be exercised in accordance with both state and local law.

The state law in this instance is contained in Ark.Code Ann., Title 14, Chapter 56. The procedures for adopting a comprehensive zoning plan in a municipality are found in Ark.Code Ann. § 14-56-422 (1987). Changes to the plan may be made in accordance with Ark.Code Ann. § 14-56-423 (1987) which provides:

After adoption of plans, ordinances, and regulations and proper filing in the offices of city clerk and county recorder, no...