Tillery v. Meadows Const. Co., 84-147

• Decision Date: 17 December 1984
• Docket Number: No. 84-147,84-147
• Citation: 681 S.W.2d 330,284 Ark. 241
• Parties: Kenneth and Jo TILLERY et al., Appellants, v. MEADOWS CONSTRUCTION COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 330

681 S.W.2d 330

284 Ark. 241

Kenneth and Jo TILLERY et al., Appellants, v. MEADOWS CONSTRUCTION COMPANY, Appellee.

No. 84-147.

Supreme Court of Arkansas.

Dec. 17, 1984.

Pryor, Robinson & Barry, Fort Smith, for appellants.

Hardin, Jesson & Dawson, Fort Smith, for appellee.

HAYS, Justice.

Appellee, Meadows Construction Company, began work on an apartment complex on a tract of land joined on three sides by single family homes. Appellants, twenty-two of those adjoining homeowners, sought an injunction claiming the notice requirements of the zoning ordinance were not complied with. The Chancellor denied injunctive relief and appellants bring this appeal. We affirm.

Appellants' principal contention is they were not given the required notice of a planning commission hearing on zoning changes which adversely affected their property. They cite Ark.Stat.Ann. § 19-2830 and a Ft. Smith ordinance detailing the notice requirements of such a hearing. In addition to notice by newspaper publication provided for in § 19-2830, the city ordinance requires a mailing to all "adjacent" property owners.

In 1974 the City of Ft. Smith undertook a comprehensive revision of its zoning ordinance, which included additional residential classifications. Appellants concede the Planning Commission gave public notice by newspaper publication and held hearings on the rezoning plan. At these hearings the zoning ordinance at issue was discussed. The proposed ordinance increased the number of previous classifications and altered some of the existing classifications. The residential areas were divided as follows: R-2 into R-2-SFDP and R-2-MF, R-3 into R-3-SFDP and R-3-MF, and R-4 into R-4-SFDP and R-4-MF.

Prior to these changes appellants' properties were zoned R-3. In the course of the hearings the Planning Commission decided to designate all property previously zoned R-2, as R-2-SFDP, all property previously zoned R-3, as R-3-MF and all property previously zoned R-4, as R-4-MF. At a later date areas were to be designated with the remaining new classifications. No property in the city was designated R-3-SFDP.

Appellants argue that the mailing requirement for these hearings was not complied with and that no notice was given of the reclassification of their properties from R-3 to R-3-MF. We disagree that the ordinance entitled appellants to individual notice by mail of the hearing on zoning reclassification. A reasonable interpretation of the ordinance does not require a city-wide mailing when a comprehensive rezoning plan is contemplated. We think the language of the ordinance requiring the mailing of notice is intended to apply when a particular tract is being considered for rezoning. The ordinance states that in addition to notice in a newspaper of general circulation:

The proponent shall, at the time the petition is presented to the Planning Commission, deliver a copy of same to the Building Inspector listing therein, the following information: the legal description of the property proposed to be rezoned; the street address of the entire petitioned area; the present zone and the proposed zone, utilizing the words "industrial," "commercial," and the like, followed by the numeral, in lieu of the mere "I-3" and the like, and the names and addresses of all persons listed as the last record owners of property adjacent to the petitioned property, including property across the street and intersection and all owners within the petitioned area, and finally, the date that this petition will be heard by the Planning Commission. This information will be utilized by the Building Inspector by mailing post cards to all persons listed therein, notifying them of the public hearing on such change, and listing the street address of the property and the proposed change. (our emphasis).

It would require a strained reading of this language to find a comprehensive zoning change necessitated notice by mail throughout the city and would result in a burdensome procedure. We are unwilling to reach that construction of the ordinance. Although zoning laws must be strictly construed in favor of the property owner, Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975), that does not compel a contrived result when common sense points elsewhere. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979). We will avoid resorting to a subtle or forced construction for the purpose of limiting or extending the meaning of a statute. Young v. Energy Transportation Systems, Inc. of Arkansas, 278 Ark. 146, 644 S.W.2d 266 (1983); Hicks v. Arkansas State Medical Board, 260 Ark. 31, 537 S.W.2d 794 (1976); City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977).

Turning to the argument that appellants were not notified of the change from R-3 to R-3-MF, we note first that for all practical purposes there was no change in appellants' zoning. In effect, the "rezoning" merely changed the name of the classification and not the substance of it. The appellee could have constructed the apartments under the R-3 classification as well as under the R-3-MF classification. R-3 permitted under general uses: single and two family homes, multi-family apartments, churches, community centers, public libraries, nursery schools, public and parochial schools and several other concerns. Under R-3-MF the general uses permitted are limited to single and two-family homes and multi-family homes. The other uses listed above under R-3 as general uses are conditional uses under R-3-MF. Thus, there was no...