City of Russellville v. Hodges

CITY of RUSSELLVILLE v. Sharon (Reynolds)
HODGES

97-152                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 11, 1997


1.   Estoppel -- necessary elements of. -- The four elements
     necessary to establish estoppel are: (1) the party to be
     estopped must know the facts; (2) the party to be estopped
     must intend that the conduct be acted on or must act so that
     the party asserting the estoppel had a right to believe it was
     so intended; (3) the party asserting the estoppel must be
     ignorant of the facts; and (4) the party asserting the
     estoppel must rely on the other's conduct and be injured by
     that reliance.

2.   Municipal corporations -- sovereign not bound by unauthorized
     acts of its employees. -- A sovereign is not bound by the
     unauthorized acts of its employees.

3.   Appeal & error -- chancellor's findings of fact -- when
     reversed. -- On appeal, the supreme court does not reverse a
     chancellor's findings of fact unless they are clearly against
     the preponderance of the evidence. 

4.   Municipal corporations -- chancellor erred in finding building
     official was authorized to waive appellant's zoning
     requirements -- chancellor's ruling that appellant was
     estopped from enforcing zoning requirements reversed and
     remanded. -- The chancellor's finding that a building
     official's issuance of electrical permits and power tags
     constituted authorized acts of the City disregarded the
     testimony of witnesses that the building official had no
     authority to authorize the placement of mobile homes in a
     housing addition in violation of the zoning ordinance;
     appellees did not meet all the requirements necessary to prove
     estoppel, as the building inspector was not authorized to
     waive the zoning requirements; therefore, the chancellor's
     finding that the building official was authorized to waive the
     City's zoning requirements was clearly against the
     preponderance of the evidence; the chancellor's ruling that
     the City was estopped from enforcing its ordinance was in
     error; the case was reversed and remanded.   


     Appeal from Pope Chancery Court; Richard Gardner, Chancellor;
reversed and remanded.
     Dunham & Faught, P.A., by:  Jame Dunham, for appellant.
     Young & Finley, by: Dale W. Finley, for appellee.


     W.H."Dub" Arnold, Chief Justice.
     This is a zoning case.  The appellant, the City of
Russellville, appeals the decision of the Pope County Chancery
Court that it was estopped from enforcing its zoning ordinance due
to the actions of its building official.  Because we agree with the
City that the building official was not authorized to waive the
zoning requirements, we reverse and the chancellorþs decision
remand.
     The City of Russellville annexed the Bishop Addition
residential subdivision in 1985.  On January 23, 1986, it amended
Ordinance No. 859, thereby rezoning the area R-2,  a classification
that prohibits mobile homes or trailers. At that time, there were
no mobile homes on lots 13, 14, 15, and 16 of Block G or East Sixth
Street, the subject of this dispute.  Sometime after annexation and
rezoning, appellees Sharon Reynolds Hodges, Tom Reynolds,  Billy
Bowman, Roy Turner, and others placed mobile homes on the lots at
issue. On May 9, 1995, the City filed suit for injunctive relief to
enforce its zoning ordinance.  Though it named eleven defendants in
its complaint, only five answered or appeared, which included the
appellees, who affirmatively pleaded that the City was estopped
from enforcing its zoning ordinance due to the conduct of its
building official, Gearl Cooper, who had issued electrical permits
and power tags for the mobile homes.   
     At trial, Mr. Cooper testified that he had issued electrical
and other types of inspection permits to the structures.  However,
as building official, he stated that he was not authorized to alter
the Cityþs zoning classifications.  According to Mr. Cooper, he had
been aware that there had been mobile homes in the Bishop Addition
þsince the first one moved in.þ  It was his testimony that, Joe
Vinson, the chairman of the planning commission, had told him that
he was going to allow mobile homes to be placed in the area. 
     City Clerk Helen Price testified that she served on the
planning commission.  According to Ms. Price, an individual member
of the commission did not possess the authority to make a decision
for the group.  It was her testimony that if Mr. Vinson told Mr.
Cooper in 1985 or 1986 that mobile homes would be allowed in Bishop
Addition, he would have done so without proper authorization, as
there had been no vote by the planning commission and city council
making such an allowance.  
     Mayor Phil Carruth testified that neither the building
official, his employees, nor the city engineer had authority to
change zoning laws or to allow the placement of structures that are
in violation of the cityþs zoning laws.  It was his testimony that,
if there were any actions taken by city employees to allow the
placement of mobile homes in the Bishop Addition, they were not
official authorized acts of the City.  
     After hearing all the evidence, the chancellor issued written
findings of fact.  These findings included that the cityþs building
official, Mr. Cooper, along with his assistants, had at times
issued permits for electrical power hookups and had inspected and
tagged the hookups for the mobile homes while knowing that the
placement of these homes in the area might be improper.  According
to the chancellor, Mr. Cooperþs  acts were authorized acts of the
city. The chancellor further found that the chairman of the
planning commission, Joe Vinson, was also aware that some mobile
homes had been placed in Bishop Addition after annexation.  It was
also the chancellorþs finding that, while none of the appellees had
ever applied for or received a building permit to place mobile
homes in the area, they were unaware that Bishop Subdivision was
zoned R-2, and had relied on the inspections and the building
officialþs approval.  After making these findings, the chancellor
concluded that, while the City had made a prima facie entitlement
to the injunctive relief requested in its complaint, the defendants
who appeared had proved by a preponderance of the evidence that the
City should be estopped from enforcing its zoning ordinance, and
that the defendants who had not appeared or answered were entitled
to the benefit of this affirmative defense. 
     Four elements are necessary to establish estoppel.  They are:
(1) the party to be estopped must know the facts; (2) the party to
be estopped must intend that the conduct be acted on or must act so
that the party asserting the estoppel had a right to believe it was
so intended; (3) the party asserting the estoppel must be ignorant
of the facts; and (4) the party asserting the estoppel must rely on
the otherþs conduct and be injured by that reliance.  State v.
Wallace, 328 Ark. 183, 941 S.W.2d 430 (1997); Footeþs Dixie Dandy,
Inc. V. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). 
Additionally, we have specifically held that a sovereign is not
bound by the unauthorized acts of its employees.  Arkansas State
Highway Commþn v. Townsend, 313 Ark. 702, 858 S.W.2d 66 (1993);
Miller v. City of Lake City, 302 Ark. 267, 789 S.W.2d 440 (1990);
Hankins v. City of Pine Bluff, 217 Ark. 226, 229 S.W.2d 231 (1950). 
On appeal, we do not reverse a chancellorþs findings of fact unless
they are clearly against the preponderance of the evidence. 
Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996).  
     We need not decide whether the four elements are met because
we conclude that the chancellor erred in finding that Mr. Cooper
was authorized to waive the Cityþs zoning requirements.  While the
chancellor found that Mr. Cooperþs issuance of electrical permits
and power tags constituted authorized acts of the City, this
finding disregards the testimony of both Mayor Carruth and Mr.
Cooper himself that he had no authority to authorize the placement
of mobile homes in the Bishop Addition in violation of the zoning
ordinance.  We can find no testimony in the record that refutes the
Cityþs proof on this issue.  As in Miller v. Lake City, supra, the
appellees did not meet all the requirements necessary to prove
estoppel, as þthe building inspector . . . was not authorized to
waive the zoning requirements.þ  302 Ark. at 270.  Therefore, we
must conclude that the chancellorþs finding that the building
official was authorized to waive the Cityþs zoning requirements was
clearly against the preponderance of the evidence.  Accordingly,
the chancellorþs ruling that the City was estopped from enforcing
its ordinance was in error.
     Reversed and remanded.