PH, LLC v. City of Conway

2009 Ark. 504, 344 S.W.3d 660, 2009 Ark. LEXIS 689
CourtSupreme Court of Arkansas
DecidedOctober 22, 2009
Docket08-1383
StatusPublished
Cited by6 cases

This text of 2009 Ark. 504 (PH, LLC v. City of Conway) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PH, LLC v. City of Conway, 2009 Ark. 504, 344 S.W.3d 660, 2009 Ark. LEXIS 689 (Ark. 2009).

Opinion

ROBERT L. BROWN, Justice.

liPH, LLC (PH), a land developer, appeals a decision by the circuit judge finding that the Conway City Council’s denial of PH’s petition to rezone its land was legislative and not arbitrary, capricious, or unreasonable. We affirm that decision.

PH owns a narrow, rectangularly shaped piece of real property in Conway. The land is presently zoned as A-l (Agricultural). On August 29, 2007, PH applied to the Conway City Council to rezone the property as R-l (Residential). PH also submitted an application to the Conway Planning Department, seeking to have a preliminary plat approved. The plat application sought to have the property divided into twenty lots. The Conway Planning Commission held a public hearing and voted unanimously to approve PH’s preliminary plat conditionally, subject to rezoning by the city council. At the same meeting, the planning commission unanimously recommended to deny PH’s petition for rezoning. PH appealed 12to the city council, and, on October 9, 2007, the city council, by a vote of seven to one, denied the requested rezoning.

PH next filed a complaint in the circuit court and requested a de novo review and jury trial under Arkansas Code Annotated section 14-56-425. In the alternative, it sought a declaratory judgment that the city council acted beyond its authority in denying the rezoning request and that its actions were arbitrary, capricious, and unreasonable. PH then moved for partial summary judgment and asked to have its rights established under section 14-56-425. The circuit judge held a hearing on the motion and ruled from the bench that section 14-56-425 did not apply because the city council’s action was legislative in nature. An order to that effect was entered on May 8, 2008.

Following that order, the circuit judge conducted a bench trial on the issue of whether the city council had acted arbitrarily, capriciously, or without a reasonable basis. The judge heard testimony from John Pennington, the owner of PH and the property in question; Bryan Charming Patrick, director of the Conway Planning and Development Department; six of the city aldermen who voted not to rezone; the one city alderman who voted to rezone; John Castain, a city-planning and land-use consultant; and Tab Town-sell, the mayor of Conway. The deposition testimony of Shelley Mehl, the seventh alderman who voted against rezoning, was introduced at trial.

hOn June 24, 2008, the circuit judge entered an order and judgment, finding that “there are legitimate concerns regarding the rezoning request and the City did not act arbitrarily and capriciously.” The order rejected all claims by PH and dismissed its complaint.

I. Nature of City Council’s Decision

We first address PH’s point on appeal that the circuit judge erred in determining the city council’s vote not to rezone was legislative and in dismissing its claim for de novo review and a jury trial under section 14-56^425. According to PH, the city council’s decision to deny its rezoning request was administrative in nature, and section 14-56-425, accordingly, applies. We turn to the applicable statutory law.

Arkansas Code Annotated sections 14-56-401 through 14-56-426 provide the Code for Municipal Planning. Section 14-56-425 of that Code specifically states:

In addition to any remedy provided by law, appeals from final action taken by the administrative and quasi-judicial agencies concerned in the administration of this subchapter may be taken to the circuit court of the appropriate county where they shall be tried de novo according to the same procedure which applies to the appeal in civil actions from decisions of inferior courts, including the right of trial by jury.

Ark.Code Ann. § 14-56-425 (Repl.1998).

The plain language of that statute makes clear that it applies only to final decisions from administrative or quasi-judicial agencies. It is well settled that when a municipality acts in a legislative capacity, it exercises a power conferred upon it by the General Assembly. See, e.g., City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 336, 916 S.W.2d 95, 97 (1996). This court has also clearly held that when city councils exercise their legislative power, courts will review their decisions only to determine if they are arbitrary, capricious, or unreasonable. See, e.g., id. at 336-37, 916 S.W.2d at 97. If the city council’s action is purely administrative, then section 14-56-425 applies. The question in the instant appeal turns on whether the city council’s action in denying PH’s rezoning request was administrative or legislative in nature. To answer the question, we must examine our case law.

In Wenderoth v. City of Fort Smith, plaintiffs brought suit in circuit court to challenge a Fort Smith Board of Directors’ ordinance, which rezoned properties that were adjacent to their land. 251 Ark. 342, 472 S.W.2d 74 (1971). This court ruled that the predecessor to section 14-56-425, under which the plaintiffs had filed suit in circuit court, was unconstitutional because it permitted a de novo review of “final action taken by the administrative, quasi judicial, and legislative agencies.” Id. at 344, 472 S.W.2d at 75 (citing Ark. Stat. Ann. § 19-2830.1) (emphasis added). This court held that the statute could not, according to the Separation of Powers Clause in the Arkansas Constitution, “empower the judiciary to take away the discretionary powers vested by our legislature in the city’s legislative body to enact zoning and rezoning ordinances.” Id. at 345, 472 S.W.2d at 75. | BThe statute was thereafter amended to provide for de novo review of only administrative and quasi-judicial agency decisions.

Eight years after Wenderoth, this court again addressed the proper standard of review in zoning cases. See City of Conway v. Hous. Auth. of Conway, 266 Ark. 404, 584 S.W.2d 10 (1979). In City of Conway, the Conway Housing Authority applied to the Conway Planning Committee to rezone a parcel of land from R-3 (Residential) to B-3 (Business). The committee denied the request, and the Conway City Council affirmed that decision. The housing authority filed a complaint in circuit court, contesting the failure to rezone, and the judge rezoned the property to B-3. The city appealed, and, on review, this court affirmed the circuit judge’s finding that the city acted arbitrarily.

We specifically said,

The General Assembly saw fit to give cities the right to exercise zoning authority ... [and] granted the cities the right to legislate upon zoning matters. This right is, of course, not unlimited. Therefore, when a municipality, pursuant to authority granted by the General Assembly, takes action in zoning classifications, it is exercising a legislative function and is not subject to review by the courts of its wisdom. Neither do the courts have power to review such legislative action by the cities in a de novo manner. In fact, when the General Assembly attempted to grant the courts power to review such actions de novo, we held such actions unconstitutional.

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2009 Ark. 504, 344 S.W.3d 660, 2009 Ark. LEXIS 689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ph-llc-v-city-of-conway-ark-2009.