City of Russellville v. Banner Real Estate

CITY OF RUSSELLVILLE v. BANNER REAL ESTATE

96-142                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 25, 1996


1.   Municipal corporations -- zoning authority must be exercised
     in accordance with both state and local law. -- A city has no
     authority to legislate other than that granted by the state;
     thus, it is clear that zoning authority must be exercised in
     accordance with both state and local law.

2.   Zoning & planning -- changes in plan may be made by majority
     vote of city council without further planning-commission
     review. -- The supreme court concluded that Ark. Code Ann. 
     14-56-423 (1987), which governs changes in zoning regulations,
     is controlling and permits a change in a zoning plan, or
     rezoning, by majority vote of the city council without
     following the procedure requiring further planning-commission
     review as prescribed in Ark. Code Ann.  14-56-422 (1987) and
     as found necessary by the chancellor in this case.

3.   Zoning & planning -- no requirement that zoning ordinance be
     made available prior to its adoption. -- While the zoning
     ordinance adopted by appellant city required a map "showing
     the location of the affected property," there was no
     requirement that precise geographic zoning categories be shown
     on the map; although it was obvious that a petition must be
     submitted in writing, the supreme court could see no
     requirement that the ultimate rezoning ordinance adopted by
     the city council be made available prior to its adoption where
     the property in question and the proposed rezoning had been
     the subjects of notice to the property owners and the required
     public hearings.

4.   Judgment -- summary judgment -- appellee was not entitled to
     judgment as matter of law in view of chancellor's
     misapplication of statute. -- Summary judgment may be granted
     when there are no remaining genuine issues of fact and the
     moving party is entitled to judgment as a matter of law;
     although the supreme court had no quarrel with the
     chancellor's apparent assumption that there were no material
     facts at issue, it could not say that appellee was entitled to
     judgment as a matter of law in view of its conclusion that the
     chancellor misapplied Ark. Code Ann.  14-56-422 to the
     procedural issue when he should have applied Ark. Code Ann. 
     14-56-423, which addresses zoning plan changes.

5.   Appeal & error -- citation to general authority and lack of
     ruling on due process precluded further research or review by
     appellate court. -- Where appellee raised a due process
     argument but cited only general authority and had obtained no
     ruling by the chancellor, the supreme court chose not to
     conduct further research to determine whether it might affirm
     on the basis that appellee had been denied due process of law.


     Appeal from Pope Chancery Court; Richard Gardner, Chancellor;
reversed and remanded.
     Donald Bourne and Dunham & Ramey, P.A., by: James Dunham, for
appellant.
     John Harris, for appellee.

     David Newbern, Justice.
     This is a zoning case.  The issue is whether a city council
may, upon oral motion, adopt a rezoning ordinance which differs
from one proposed by the city's planning commission.  We reverse
the Chancellor's decision awarding a partial summary judgment, the
effect of which was to preclude the city council from doing so.
     The City of Russellville petitioned the Russellville Planning
Commission to rezone certain property facing Twelfth Street in
Russellville from category C-4, quiet commercial, to category R-1,
single-family dwellings.  The tract under consideration included
property owned by the appellee, Banner Real Estate, a partnership. 
The petition proceeded before the Russellville Planning Commission
where public hearings were held.  The Commission's recommendation
was that the tract be rezoned, with portions of it to become R-1
and other portions R-2.  The R-2 category permits construction of
apartments.  The Banner property is located in the part of the
tract recommended by the Commission for R-2 rezoning.
     The resulting Ordinance 1474, as adopted by the Council,
differs from the Commission proposal.  While the Council did as the
Commission had recommended by rezoning the land which had
previously been zoned C-4 to R-1 and R-2, the line between the two
resulting R-category portions of the property was drawn differently
by the Council so as to make part of Banner's property R-2 and part
of it R-1, rather than all of the Banner property being rezoned R-2
as recommended by the Commission.  The change came about as the
result of an oral motion by a councilman after the third reading of
ordinance which, as proposed, accorded with the Commission's
recommendation.
     Banner brought suit in Pope Chancery Court to have Ordinance
1474 declared void.  It contended the Ordinance was invalid because
the precise manner of drawing the R-1--R-2 line, as a result of the
orally proposed modification, had not been shown on any map or in
writing prior to its adoption.  It was contended that Banner's
right to due process of law was violated as members of the public
had not been allowed to address the ordinance as it appeared in the
form ultimately adopted.  
     Banner moved for a partial summary judgment.  The motion was
granted.  There apparently were other claims in this litigation
which were not adjudicated.  The Chancellor entered a proper order
certifying the partial summary judgment for appeal in accordance
with Ark. R. Civ. P. 54(b).   
     In Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark.
570, 647 S.W.2d 458 (1983), we held invalid an attempt by a city
council to enact a rezoning ordinance.  A city council had rezoned
property without the request having been considered by the city's
planning commission.  We noted that the state law would have
permitted the city council to do as it did, but that, because there
had been no compliance with the procedure specified by the city's
zoning ordinance requiring submission of the proposed rezoning to
the planning commission, the ordinance was invalid.  At the outset
of our opinion, we pointed out that a city has no authority to
legislate other than that granted by the state.  It is thus clear
that zoning authority must be exercised in accordance with both
state and local law.
     The state law in this instance is contained in Ark. Code Ann.,
Title 14, Chapter 56.  The procedures for adopting a comprehensive
zoning plan in a municipality are found in Ark. Code Ann. 
14-56-422 (1987).  Changes to the plan may be made in accordance
with Ark. Code Ann.  14-56-423 (1987) which provides:

     After adoption of plans, ordinances, and regulations and
     proper filing in the offices of city clerk and county
     recorder, no alteration, amendment, extension,
     abridgement, or discontinuance of the plans, ordinances,
     or regulations may be made except in conformance with the
     procedure prescribed in 14-56-422, or by a majority vote
     of the city council.

The Chancellor held that the procedure followed by the Council was
illegal because  14-56-422 was not followed.  As we read the
statutes,  14-56-423 is controlling, and it permits a change in
the zoning plan, or rezoning, by "majority vote of the city
council" without following the procedure requiring further planning
commission review as prescribed in  14-56-422 and as found
necessary by the Chancellor.
     Ordinance 1459 of the City of Russellville provides the
procedure to be followed when the City, as in this case, is the
petitioner seeking rezoning of a citizen's property.  It requires
the City to prepare a petition and a plat map "showing the location
of the affected property."  It provides further for sending notice
to the owner, posting a "rezoning sign, and holding public hearings
before the Commission.  Finally, it states in subsection 5, "After
a public hearing is held, and the petition is reviewed by the
Planning Commission, the Council may amend the zoning district
boundary by passage of an ordinance by majority vote."  
     While the ordinance thus requires a map "showing the location
of the affected property," there is no requirement that there be
precise geographic zoning categories shown on the map.  Although it
is obvious that a petition must be submitted in writing, we see no
requirement that the ultimate rezoning ordinance adopted by the
Council be made available prior to its adoption so long as the
property in question and the proposed rezoning have been the
subjects of notice to the property owners and the required public
hearings.
     Summary judgment may be granted when there are no remaining
genuine issues of fact and the moving party is entitled to judgment
as a matter of law.  Ark. R. Civ. P. 56(c).  The Chancellor must
have assumed there were no material facts at issue, and we have no
quarrel with that assumption.  Rather, we cannot say that Banner
was entitled to judgment as a matter of law in view of our
conclusion that the Chancellor misapplied  14-56-422 rather than
applying  14-56-423 to the situation before him. 
     Finally, we note Banner's general due-process-of-law argument,
which formed a part of its pleading before the Chancellor but was
not mentioned in the Chancellor's ruling.  While we may affirm on
any proper legal basis, we are reluctant to consider doing so on
the basis of the due process argument.  Banner has given us only a
quotation of general language that, "It is fundamental that a
person cannot be deprived of life, liberty or property without due
process of law," citing the Fifth and Fourteenth Amendments and
Ark. Const. art.2,  21, along with Godwin v. Godwin,  268 Ark.
364, 596 S.W.2d 695 (1980), and Franklin v. State, 267 Ark. 311,
590 S.W.2d 28 (1979).  Neither of the cited cases is particularly
relevant.  Without something other than the general authority cited
and without the issue having been made the subject of the hearing
before the Chancellor and of a ruling by him, we choose not to
conduct further research on the subject to see if we might affirm
on the basis that Banner was denied due process of law.  Our
decision has only to do with the point more fully argued, and
decided by the Chancellor, with respect to the City Council's
statutory authority.
     Reversed and remanded.