The opinion
John I. Purtle, Justice, dissenting. In my opinion, this is a very arbitrary, capricious and unreasonable decision rendered by the Board of Directors. I am disappointed that the majority does not recognize that the appellants are quite obviously being given unequal treatment of the law by the city of Little Rock, Arkansas. Originally, the appellants acquired this property which was clasified “A-l” family. The ordinance in effect allowed “A-l” family district and “B residence” district to be used among other things for "public schools, elementary and high, and other educational institutions with curriculum equivalent to a public elementary school or public high school.” It is obvious to me that the Montessori School operated by the appellants at the above property classified as the equivalent to a public elementary school. See City of LR v. Infant-Toddler Montessori Sch., 270 Ark. 697 , 606 S.W. 2d 748 (1980). Additionally, the property sits directly across Kavanaugh from the post office and has a garage on the east side and an apartment house behind. The area to the west includes such businesses as the Kroger Grocery Store and other similar businesses. Nevertheless, this court upheld the court below in ruling that this Montessori School was not equivalent to public elementary schools.
When the appellants received notice of rejection of their application to rezone the property, even though several other schools were then and are still presently operating in “A-l” family districts, they applied for classification as “E-1.” This was denied by the Board of Directors. They then filed an application for variance to allow their school to continue, like many others are continuing. The variance was denied.
The staff for the city recognized that this particular property was no longer suitable for single family dwellings. In fact, the staff of the Planning Commission stated: "... Single family dwellings are no longer appropriate with an orientation towards Kavanaugh; particularly one which faces theU.S. Post Office across the street.” This is the arm of the city government that furnishes information to the city directors in order that their decisions might be based upon sound footing.
Appellants’ property is actually an enclave into the surrounding business area. To the immediate west and contiguous to this land is a multi-unit apartment house built on a 50 foot lot; to the south is a duplex which is contiguous to the property in question. Across Kavanaugh Street and directly in front of the subject property is a branch office of the United States Postal Service. On the east side of the property there is a garage and a single family dwelling. This single family dwelling on the northeast corner is the only single family property contiguous to appellants’ property here in question and it is separated by an alley.
The staff recommended to the Board of Directors that this property is no longer suitable as single family dwelling property. The appellants have first requested to be allowed to operate their school in the area which, in my opinion, was already authorized, but their request was denied. They then petitioned to rezone the property to a quiet business type property. They were refused. They made application for a waiver, and it was refused. Finally, in desperation they brought this second suit in order to try to get the property classified in a manner which would make it productive to them. They did not even seek to have it classified into the classification which most of the property along Kavanaugh has been assigned.
Every time the appellants appear before a commission, board or court they are told they should try some other classification. When such classification is sought, it is denied. Appellants’ property is almost completely surrounded by property which is classified other than “A-l” residential. It is clear enough to me that the appellants in this case have not been given equal protection of the law as guaranteed by the state and federal constitutions. Therefore, I would reverse the case and send it back with directions to reclassify it.