Ferguson v. City of Mountain Pine

• Decision Date: 14 March 1983
• Docket Number: No. 82-255,82-255
• Citation: 278 Ark. 575,647 S.W.2d 460
• Parties: Elmer FERGUSON and Ethel Ferguson, Appellants, v. CITY OF MOUNTAIN PINE, Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 460

647 S.W.2d 460

278 Ark. 575

Elmer FERGUSON and Ethel Ferguson, Appellants, v. CITY OF MOUNTAIN PINE, Arkansas, Appellee.

No. 82-255.

Supreme Court of Arkansas.

March 14, 1983.

Q. Byrum Hurst, Jr., Hot Springs, for appellants.

David M. Love, Hot Springs, for appellee.

DUDLEY, Justice.

In 1977 the City of Mountain Pine adopted a comprehensive zoning ordinance. A tract of appellants' land was zoned C-1 which is defined in the ordinance as an area of intensive commercial use and the retail core of the city. The description of permitted uses for the classification does not include mobile homes. Appellants operate a laundromat, a grocery store, a drive-in restaurant and a filling station on the land. They submitted requests for a variance to the zoning committee and the city council so that they could place a mobile home on the property for use as a residence with one room to be used as an office. The requests were denied but, even so, appellants moved a mobile home onto the property.

The City of Mountain Pine brought this action against appellants seeking a mandatory injunction to compel removal of the mobile home on the basis that it is an incompatible use in a district zoned C-1. It is from an order of the trial court granting the injunction that appellants bring this appeal. Jurisdiction is in this Court pursuant to Rules 29(1)(a), (c) and (f). We affirm.

Appellants first argue that the mobile home is incidental and accessory to commercial uses. The ordinance defines an accessory use as "A use which is customarily incidental to the principal use, as a garage for the storage of an automobile by occupant of a residence." Although appellants argue that their use of the trailer as a residence and office is accessory to the businesses they operate, they offered no proof at trial that this use is customary or even that it is not unique or rare. See e.g., County of Lake v. LaSalle National Bank, 76 Ill.App.3d 179, 32 Ill.Dec. 282, 395 N.E.2d 392 (1970). Therefore, the findings of the chancellor are not clearly against the preponderance of the evidence, and we affirm on this point. ARCP Rule 52; City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981).

Second, appellants argue that the ordinance in question is unreasonable and unconstitutional as applied to their property. They rely on City of Little Rock v. Hunter, 216 Ark. 916, 228 S.W.2d 58 (1950), for the proposition that "as to particular lots, a court may declare a zoning ordinance void upon a proper showing that its application is arbitrary, unreasonable and discriminatory." At trial, not only did appellants fail to offer any proof as to the unreasonableness of the ordinance but they admitted that the city council did not act in an arbitrary and capricious manner in denying their request for a variance. We have consistently held that we will not consider issues raised for the first time on appeal. See, e.g., Sun Gas Liquids Co. v. Helena National Bank, 276 Ark. 173, 633 S.W.2d 38 (1982). Therefore we do not reach appellants' second point.

The chancellor specifically found that under the terms of the zoning ordinance appellants' property is zoned for commercial purposes, no mobile homes are permitted and the city council did not act arbitrarily in refusing to grant a variance to appellants.

Appellants argue that the chancellor's interpretation of the zoning ordinance as excluding a mobile home on their property was erroneous and unreasonable. The argument, as it is made, assumes that the ordinance is not an exclusive zoning...