Rolling Pines Ltd. Partnership v. City of Little Rock

• Decision Date: 14 March 2001
• Docket Number: 00-165
• Citation: 40 S.W.3d 828
• Parties: ROLLING PINES LIMITED PARTNERSHIP, v. CITY of LITTLE ROCK. CA 00-165 Court of Appeals of Arkansas Division III Opinion delivered
• Court: Arkansas Court of Appeals

ROLLING PINES LIMITED PARTNERSHIP v CITY of LITTLE ROCK

CA 00-165

Court of Appeals of Arkansas Division III

Opinion delivered March 14, 2001

Appeal from Pulaski Circuit Court; John C. Ward, Judge; affirmed.

1. Zoning & planning -- ordinances -- strictly construed. -- A zoning ordinance, being in derogation of common law, must be strictly construed in favor of the property owner; however, the same rules of statutory construction are applied to zoning ordinances as are applied to statutes.

2. Statutes -- construction. -- In interpreting a statute, the appellate court will give words in the statute their ordinary meaning and common usage; the appellate court will avoid resorting to a subtle or forced construction for the purpose of limiting or extending the meaning of a statute.

3. Zoning & planning -- strict construction does not compel contrived result. -- Although zoning laws must be strictly construed in favor of the property owner, that does not compel a contrived result when common sense dictates otherwise.

4. Zoning & planning -- ordinance construed -- phrase "proposed land use" refers to proposed conditional use. -- Little Rock Code § 36-107(2) is found in that portion of the code dedicated to the City Planning Commission's review of conditional-use permits; manufactured homes are specifically classified as such a conditional use; the definitions section of the code specifically refers to a manufactured home as a "use"; it was clear that the phrase "proposed land use" found in the ordinance referred to the proposed conditional use, which in this case was manufactured housing.

5. Zoning & planning -- eight requirements regarded as "minimum siting standards" -- Commission could consider matters in addition to eight requirements in assessing conditional use. -- The eight technical requirements specific to manufactured homes that are set out in Little Rock Code §a36-254(d)(5) evidence an attempt by the city lawmakers to ensure that manufactured homes will be as harmonious as possible in structure and appearance with site-built homes; however, the eight requirements are by their own definition regarded as "minimum siting standards"; the use of the term "minimum" necessarily implied that the Commission could consider matters over and above those eight requirements in assessing a conditional use.

6. Zoning & planning -- "compatible" defined -- trial court used accepted meaning. -- The word "compatible" means capable of existing together without discord or disharmony; from the appellate court's review of the trial court's decision, there was no indication that the trial court interpreted it to mean anything other than its accepted definition.

7. Zoning & planning -- conditional use -- designation as such does not constitute predetermination that proposed use must be permitted. -- Designating a use as a conditional one does not necessarily constitute a predetermination that the proposed use must be permitted; while classifying a use as a conditional one may result from a legislative determination that such a use may be acceptable in a given district, there is no prohibition against an ordinance requiring compliance with specific and measurable criteria.

8. Zoning & planning -- conditional use permit -- Commission afforded discretion. -- Conditional use permits may issue when the appropriate municipal agency finds that certain conditions or requirements have been satisfied, which determination involves the exercise of discretion and necessitates a quasi-administrative or quasi-judicial consideration; certain uses that are not permitted as a matter of right in particular use districts may be permitted conditionally when the end result will not adversely affect the comprehensive plan for the area and is not incompatible with the permitted uses; the conditional-use permit provides flexibility to decisions of commissions involved in the zoning process; the uses will be permitted if in the discretion of the Planning Commission, certain conditions have been met; the most important one being that the use in question will not be incompatible with the surrounding neighborhood and will not adversely affect the plan for the area.

9. Zoning & planning -- aggregate placement of manufactured homes was not compatible with character of existing neighborhood --Commission's determination appropriate exercise of discretion. -- In the exercise of their discretion, the Commission determined that aggregate placement of manufactured homes was not compatible with the character of the existing neighborhood, which was one that was well-established and consisted of modest, well-kept homes, where all but one were brick-and-frame structures; there was concern as to the long-term quality of manufactured homes and the effect that manufactured housing would have on property values, questions that went unanswered due to appellant's failure to provide an impact study as requested; the court rejected the only evidence offered to show that manufactured housing would not have an adverse effect on value, where the offered appraisal was not a valid comparison because the manufactured home was situated on a large, wooded lot, whereas the proposed manufactured homes were to be situated side by side on smaller lots; the application of the general principles cited by appellant did not mandate a different result.

10. Appeal & error -- no ruling made at trial -- arguments not considered. -- Where the trial court made no rulings with respect to appellant's equal-protection or delegation-of-power arguments, the appellate court did not consider them.

11. Zoning & planning -- ordinances -- presumed constitutional. -- An ordinance is presumed to be constitutional, and the burden of proving otherwise is on the challenging party.

12. Constitutional law -- due process of law -- void for vagueness doctrine. -- A statute violates the first essential of due process of law if it either forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application; the purpose of the void for vagueness doctrine is to limit arbitrary and discretionary enforcement of the law.

13. Constitutional law -- land use -- specificity of conditional use standards. -- In the area of land use, a conditional use standard must be sufficiently specific to guide both an applicant in presenting his case and the Commission in examining the proposed use.

14. Constitutional law -- term "compatible" not impermissibly vague -- appellant failed to establish that ordinance was unconstitutional. -- The term " compatible" has a well-defined meaning and is not so vague as to leave an applicant guessing as to its import or meaning; here there was no indication that appellant was laboring under any misconception of what the ordinance required in order to obtain a permit; appellant failed to establish that the ordinance was unconstitutional.

15. Appeal & error -- arguments raised for first time in reply brief not considered on appeal. -- The appellate court would not consider arguments made for the first time in a reply brief.

Mitchell, Blackstock, Barnes, Wagoner & Ivers, by: Clayton R. Blackstock, for appellant.

Stephen R. Giles, for appellee.

Steve Owings, amicus curiae, for American Planing Association.

John E. Jennings, Judge.

This is an appeal from the denial of a conditional use permit. For reversal, appellant contends that the trial court erred in its interpretation of certain city ordinances; that the trial court failed to apply recognized presumptions and standards that accompany conditional uses; and that the trial court erred in concluding that one of the ordinances was not unconstitutionally vague. We affirm.

Appellant, Rolling Pines Limited Partnership, is engaged in the development of the Rolling Pines subdivision in southwest Little Rock. The subdivision is zoned R-2, Single-Family District. Approximately twenty-six, site-built and predominantly brick homes now occupy the western part of the subdivision. In 1994, a second phase of development began on approximately twenty lots located in the eastern part of the subdivision. Appellant encountered difficulty in generating buyer interest and decided to place manufactured homes in the subdivision. However, the City's zoning ordinances do not allow manufactured homes to be placed in an R-2 district as a matter of right. The zoning code does allow them as a conditional use, provided certain criteria are met.

Under the pertinent zoning ordinances, the City Planning Commission is given the authority to approve or disapprove conditional use permits "[a]fter detailed review of [the use's] compatibility with the area...." Little Rock Code § 36-101. The code sets out both general and specific guidelines to be used by the Commission in evaluating applications for conditional use permits. Among the general guidelines is that the "proposed land use is compatible with and will not adversely affect other property in the area where it is proposed to be located." Little Rock Code § 36-107(2). The code also provides under § 36-254(a) that conditional uses will be permitted "provided they do not have objectionable characteristics, and provided further that they otherwise conform to the provisions of this chapter." With regard to manufactured homes, the code sets out specific guidelines for conditional use permits as found in § 36-254(d)(5). That section designates the following eight "minimum" standards that apply to the placement of a manufactured home in an R-2 zone: (1) a pitched roof of three (3) in twelve (12) or fourteen (14) degrees or greater; (2) removal of all transport elements; (3) permanent foundation; (4) exterior wall finished so as to be compatible with the neighborhood; (5) orientation compatible with placement of adjacent structures; (6) underpinning with permanent materials; (7) all homes shall be multi-sectional;...