Trice v. City of Pine Bluff
| Decision Date | 25 April 1983 |
| Docket Number | No. 82-233,82-233 |
| Parties | Garland TRICE, Jr., Appellant, v. CITY OF PINE BLUFF, Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Berlin C. Jones, Pine Bluff, for appellee.
This is an appeal from convictions for violating a city zoning ordinance. The narrow issue involved is whether the ordinance was too vague to be enforced through criminal law. We hold that the ordinance did not give appellant fair warning in definite language that his acts were prohibited and we reverse the conviction. Jurisdiction is in this Court as the case involves the validity of a municipal ordinance as applied. Rule 29(1)(c).
The City of Pine Bluff has a comprehensive zoning ordinance. Appellant owns two lots in the city which are designated for residential purposes. The city issued a permit to appellant for a non-conforming use, a garage, on the lot across the street from the tract on which his home is located. The neighbors complained to the city about appellant's use of the lot with the garage. However, appellant did not think he was violating the uses proscribed by the zoning ordinance.
As a result, the city charged appellant in municipal court with five separate counts of "Violation of City Ordinance." He was convicted on all counts and appealed to circuit court. There, at the commencement of the consolidated trials, the circuit judge prophetically inquired of the city attorney as follows:
The sufficiency of the charge is not questioned on appeal. One count, 137-D, was dismissed by the circuit court but appellant was found guilty on the other four counts. The convictions were had because on four different days a zoning administrator found the following: (1) "grass that needed cutting and some other items stored ... and a pile of lumber," (2) "an 18 wheel tractor-trailer on the lot," (3) "a pickup truck," and (4) "another truck, approximately one ton." The specific question before this Court is whether the ordinance gives a person fair warning in definite language that the following Zoning ordinances may be judicially enforced by either civil or criminal proceedings. City of Mountain Home v. Ray, 223 Ark. 553, 267 S.W.2d 503 (1954). Civil enforcement, the most common form, is usually by actions for injunctions or declaratory judgments. In those civil actions, an ambiguous ordinance or one with a double meaning may be construed by the courts so that effect is given to the legislative intent. The rule for enforcement by criminal action is markedly different because there can be neither constructively created criminal offenses nor criminal offenses established by implication. International Harvester Co. v. State, 79 Ark. 517, 96 S.W. 119 (1906). Ordinances creating criminal offenses must be clear and unambiguous. In civil law we inquire into what the legislature meant but in criminal law we inquire into only what the statute means. Lewis v. State, 220 Ark. 259, 263, 247 S.W.2d 195, 197 (1952), citing Giles v. State, 190 Ark. 218, 78 S.W.2d 70 (1935). It is this difference that makes a criminal proceeding a poor vehicle for resolving a zoning dispute such as the one before us. Instead of seeking a declaratory judgment for the interpretation of the ordinance or an injunction against impliedly proscribed uses, the city sought to resolve this dispute by the process of a criminal action. Therefore, we examine the ordinance for vagueness, the standard for criminal statutes.
are prohibited: (1) allowing grass to grow too high and storing lumber, (2) parking a large truck, (3) parking a small truck, and (4) parking a medium truck.
The standard by which we determine whether an ordinance is vague is whether the ordinance gives a person of average intelligence a fair warning in definite language of the prohibited act. Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1982). The material section of the ordinance is appended to this opinion. There is no warning in definite language that the ordinance in question created a criminal offense for allowing grass to exceed a certain height, or for storing lumber, or for parking trucks. The city's argument tacitly recognizes that there was no warning in definite language but it contends that the ordinance is an exclusive zoning ordinance and therefore all uses other than proper residential uses are criminally excluded. From this basis the city constructively or by implication would create the four criminal offenses. Although this argument might be valid in a civil action to determine permitted uses, see Ferguson v. City of Mountain Pine, 278 Ark. 575, 647 S.W.2d 460 (1983), it is irrelevant to the interpretation of criminal laws which are subject to strict guidelines of interpretation. Lewis v. State, 220 Ark. 259, 263, 247 S.W.2d 195, 197 (1952). Moreover, the following questions demonstrate the fallacy in this interpretation of the ordinance. For example, how tall is grass which is too tall? How much lumber, if any, can be stored? What, besides lumber is prohibited from being stored? May an automobile be parked on one's land? If so, why may an automobile be parked when a pickup truck may not? Quite obviously, the ordinance contains no written standard by which the questions can be answered. Logic dictates only one conclusion: that a zoning administrator and a judge decide what constitutes an offense without written standards. In Davis v. Smith, 266 Ark. 112, 118, 583 S.W.2d 37, 41 (1979), we stated:
In criminal cases, placing discretion in the hands of the police without prescribing any standards governing its exercise is another instance which renders a statute void for vagueness. Papachristou v. City of Jacksonville, supra [405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) ] .... A law which, due to vagueness, leaves basic policy matters in the criminal law field to either policemen or judges on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application, is also impermissible. Grayned v. City of Rockford, supra [408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ]. A law that is so vague and standardless that it leaves judges or jurors free to decide, without any legally fixed standards, what is prohibited and If an ordinance can be construed to create a criminal offense, not by its definite language, but merely according to a zoning administrator's interpretation of that ordinance, we become a state governed not by laws but by administrators.
what is not in each particular case fails to meet due process requirements. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). See also, Andrew Jackson, ex parte, 45 Ark. 158.
The city seeks to minimize this danger by placing reliance on the argument that appellant knew that in his application for a permit for a non-conforming use, he stated the garage would be used to park an automobile and knew the manner in which the city interpreted its own ordinance. Therefore, the city argues, he had fair warning. However, criminal offenses cannot properly rest upon what an application stated when that application does not form a part of the charge, or upon what the neighbors thought the ordinance meant or upon what warning an administrator gave based upon his own interpretation of the ordinance. The validity of the criminal provisions of the ordinance is determined by the language of the ordinance. That language is vague and the conviction must be reversed.
Reversed and dismissed.
APPENDIX
This District is intended for use in residential neighborhoods which meet one or both of the following criteria:
1. Lot sizes are generally smaller than those required in the "R-1" zone in area or dimension.
2. It can be established that the residential character of the neighborhood can best be preserved or improved by allowing a broader mix of uses than allowed in "R-1" areas.
1. Single Family Dwellings
2. Accessory Uses and Buildings
3. Duplex (with lot area of 7,800 sq. ft. and a lot width of 65 ft.)
4. Home Occupation
5. Any single lot subdivided and recorded as of the effective date of this Ordinance, with a fifty (50) foot width at the building line, and five thousand (5,000) square feet of area, may be used at the discretion of the Zoning Administrator where required R-3 setbacks can be met.
6. Office uses which comply with the following additional regulations and other city regulations.
The Planning Commission may impose special conditions relating to such considerations as the site plan, screening or parking as a condition for approval of the following uses or any other uses it deems appropriate for the protection of the public health, safety and welfare.
1. Parks and Playgrounds
2. Day-Care Family Home
3. Rooming House
4. Cemetery
5. Public & Semi-public Uses
6. Golf Course
7. Te...
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