The opinion
Tom Glaze, Justice, concurring. While I concur with its conclusion, I believe the majority opinion’s logic is flawed. The following chronology of events is important:
June 15, 1987 Landowner, Bailey, applied to rezone his property from Residential 1 to Commercial 1.
July 9, 1987 Fordyce Zoning and Planning Commission denied Bailey’s application.
November 16, 1987 Fordyce City Council overturned its Planning Commission’s decision by passing Ordinance No. 879, which rezoned the Bailey property to Commercial 1.
December 8, 1987 — Fordyce City Council changed its prior decision by passing Ordinance No. 880, which repealed Ordinance No. 879. If effective, this council action would revert property to Residential 1.
February 9, 1988 — Fordyce City Council again changed its collective mind by passing Ordinance No. 881, which rezoned the Bailey property to Commercial 1.
The majority court holds that, because the City Council failed to refer the Bailey zoning matter back to the Planning and Zoning Commission before passing Ordinance No. 881 on February 9, the council had not substantially complied with its own zoning code; thus, its passage of Ordinance No. 881 was vitiated. If the majority is correct, the City Council action in enacting Ordinance No. 880 is likewise invalid, since the Council also failed to return this same matter to the Planning and Zoning Commission before Ordinance No. 880’s passage. Conversely, if the Council enactment of Ordinance No. 880 was valid without the Council having returned the Bailey zoning matter to the Commission for its reconsideration, the Council’s enactment of Ordinance No. 881 under the same circumstances must also be valid. That being so, the Council’s action on December 8, 1987, and February 9, 1988, would both be either valid or invalid, depending on this court’s construction of the relevant Municipal Planning Laws ( Ark. Code Ann. §§ 14-56-401 to -425 (1987)) and Fordyce’s own zoning code ordinances.
My view is that the City Council had ample authority to take the action it did when passing both Ordinance 880 and 881. Among other things, § 14-56-422, which provides for the adoption of plans, ordinances and regulations regarding zoning matters, provides in relevant part as follows:
(4) The legislative body of the city may return the plans and recommended ordinances and regulations to the commission for further study or recertification or, by a majority vote of the entire membership, may, by ordinance or resolution, adopt the plans and recommended ordinances or regulations submitted by the commission. However, nothing in this subchapter shall be construed to limit the city council’s authority to recall the ordinances and resolutions by a vote of a majority of the council. (Emphasis added.)
Clearly, § 14-56-422(4) authorized the Fordyce City Council to reconsider its earlier ordinances and actions pertaining to the Bailey zoning matter. While Fordyce’s own planning ordinance, Ordinance No. 624, provides “no application for a change of the zoning ordinance may be resubmitted within 12 months [from the Council’s denial]. . . ,” such limitation pertains to the applicant’s action, not that of the Council’s. This is as it should be. A city council should not be bound only to one consideration or vote on a controversial zoning proposal. If the council decides later that it made an error, it should not be required to return the matter to its Planning and Zoning Commission before being able to correct the council’s mistake. By the same token, an applicant should not be in a position to force the council to continue to reconsider his or her zoning application if the council determines any such reconsideration would be a waste of time; thus, the one-year limitation upon the applicant’s right to such a reconsideration. In this way, § 14-56-422(4) is in harmony with the city’s one-year limitation ordinance provision.
I should add that this case is unlike the cases cited by the majority, Potocki v. City of Ft. Smith, 279 Ark. 19 , 648 S.W.2d 462 (1983) and Taggart and Taggart Seed Co. v. City of Augusta, 278 Ark. 570 , 647 S.W.2d 458 (1983). In Taggart, Augusta’s City Council ignored its planning commission and zoning code ordinance altogether, by passing a zoning ordinance without the zoning request ever having been considered by Augusta’s Commission. The Potocki case involved an applicant-landowner’s second application to Ft. Smith’s Planning Commission within one year of the city and board’s action rejecting the applicant’s first application. This court held the applicant’s second petition was premature since it violated the city’s zoning code ordinance, which limited an applicant’s resubmission until at least one year after the board’s denial of his first application.
While I disagree with the majority court’s reasoning on this point, I would still affirm the chancellor’s decision. The chancellor concluded, correctly I believe, that one of the councilmen, Mr. Marvin O’Mary, had a conflict of interest when voting on Ordinance No. 881. Mr. O’Mary is a public accountant, and Mr. Bailey, the applicant in this case, was a client of O’Mary’s when Bailey’s zoning request came before the council. O’Mary candidly conceded that had he taken a position contrary to Bailey’s request, O’Mary would not have received $6,500 a year from Bailey. Unquestionably, O’Mary had an economic stake in rezoning Bailey’s property at the time he cast his vote in Bailey’s favor. He also testified he gave no weight to the Commission’s decision denying Bailey’s request. Had O’Mary not voted, Bailey’s application would have received two votes with three council members voting against rezoning. Because O’Mary’s vote caused a tie vote (3-3), the mayor was called upon to cast the deciding vote, which he cast in favor of the rezoning requested by Bailey.
Arkansas prohibits council members from being directly, or indirectly, interested in the profits of any contract for the furnishing of supplies, equipment, or services to the municipality unless the governing body of the city shall have enacted an ordinance permitting the members to do so and prescribing the extent of this authority. See Ark. Code Ann. § 14-42-107 (b)(1) (1987). Although § 14-42-107(b)(1) is not exactly on point, this court, in considering that provision in Price v. Edmonds, 232 Ark. 381 , 337 S.W.2d 658 (1960), recognized as still viable the common law rule which prohibits municipal officers from self-dealing in regard to the sale of materials as well as in contracts or jobs for work or services. The general rule relating to personal interests retained by a voting council member as set out in 56 Am. Jur. 2d Municipal Corporations § 142 (1971) is as follows:
It is thoroughly established that a member of a municipal council who has a direct personal interest in a matter coming before the council is not eligible to vote thereon. Some jurisdictions have adopted the view that the fact that a member is disqualified by interest does not necessarily invalidate the action of the council if his vote is not necessary to a majority. On the other hand, it has been held that if his vote is determinative in favor of action in his interest, such action is void.
Here, O’Mary’s vote was dispositive of the rezoning request made by Bailey, and I would hold O’Mary’s action was void. As previously discussed, the chancellor held Ordinance No. 881 invalid because the Council did not first return the rezoning matter to the City’s Commission. While the chancellor was wrong in his reasoning, I would affirm his decision in this de novo review on the basis Ordinance No. 881 failed to receive the necessary majority vote, since O’Mary’s vote was invalid.
For the above reasons, I would affirm.
Dudley, J., joins this concurrence.