Camden Community Development Corp. v. Sutton

ANNABELLE Clinton IMBER, Justice, dissenting. We are ustice, rezoning is a legislative function that may be the subject of an initiative petition under Amendment 7 to the Arkansas Constitution. Our decision on that question does not depend upon a city councd’s action or inaction on a particular zoning ordinance. Rather, our decision is governed by whether the city councd has the legislative authority to enact rezoning ordinances. If that legislative authority has been delegated to a city council by the General Assembly, then rezoning may be the subject of an initiative petition under Amendment 7.

The General Assembly has given to municipal corporations the power to enact zoning ordinances. Ark. Code Ann. §§ 14-56 -402— 14-56-425 (Repl. 1998); City of Lowell v. M & N Mobile Home Park, 323 Ark. 332 , 916 S.W.2d 95 (1996). Specifically, the procedures for adopting a comprehensive zoning plan are found in Ark. Code Ann. § 14-56-422 . Subsequent changes to the zoning plan must be made in accordance with Ark. Code Ann. § 14-56-423 , which provides:

After adoption of plans, ordinances, and regulations and after 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.

(Emphasis added.)

We have held that section 14-56-423 permits a change in the zoning plan, or rezoning, by “majority vote of the city council” without following the procedures requiring further planning commission review as prescribed in section 14-56-422. Russellville v. Banner Real Estate, 326 Ark. 673 , 933 S.W.2d 803 (1996); see also Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570 , 647 S.W.2d 458 (1983) (“The 1957 Act, before a later amendment, required a complete review by a planning commission before the legislative body of the city took action to alter boundaries. There were no exceptions. However, the enabling legislation was amended in 1959 to authorize an alternative procedure to amend boundaries simply “by a vote of the city council.”). Thus, it is clear that a city council has unrestricted legislative authority to rezone property.

Amendment 7 to the Arkansas Constitution reserves the people’s initiative and referendum powers to the local voters of each municipality and county “as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State.” In considering the mandates of Amendment 7, we have drawn a distinction between actions of a legislative nature, to which Amendment 7 applies, and actions of an administrative nature, to which it does not apply. See Gregg v. Hartwick, 292 Ark. 528 , 731 S.W.2d 766 (1987); Cfiy of North Little Rock v. Gorman, 264 Ark. 150 , 568 S.W.2d 481 (1978); Greenlee v. Munn, 262 Ark. 663 , 559 S.W.2d 928 (1978). We have long held that Amendment 7 is to be liberally construed in order that its purposes may be effected. Gregg v. Hartwick, supra; Leigh & Thomas v. Hall, 232 Ark. 558 , 339 S.W.2d 104 (1960).

The test for determining the character of municipal actions is well-established. A power or authority to be exercised is legislative in nature if it prescribes a new policy or plan, whereas it is administrative in nature if it simply pursues a plan already adopted by the legislative body. Gregg v. Hartwick, supra; City of North Little Rock v. Gorman, supra; Greenlee v. Munn, supra; Scroggins v. Kerr, 217 Ark. 137 , 228 S.W.2d 995 (1950). In that regard, we have consistently held that the enactment of zoning ordinances constitutes municipal legislation. City of Little Rock v. Pfiefer, 318 Ark. 679 , 887 S.W.2d 296 (1994); Johnson v. Sunray Servs., Inc., 306 Ark. 497 , 816 S.W.2d 582 (1991); Mings v. City of Fort Smith, 288 Ark. 42 , 701 S.W.2d 705 (1986); McMinn v. City of Little Rock, 275 Ark. 458 , 631 S.W.2d 288 (1982); Wenderoth v. City of Fort Smith, 251 Ark. 342 , 472 S.W.2d 74 (1971). In Wenderoth, supra, we quoted with approval the following statement by the Alabama Supreme Court in Ball v. Jones, 130 So.2d 120 (Ala. 1961):

Also, a rezoning of a certain area, as was done in the instant case, becomes a part of the existing comprehensive ordinance, and, a fortiori, is a legislative act.

While Wenderoth, supra, dealt with the propriety of de novo review in zoning appeals, the holding in that case was dependent upon our unequivocal characterization of rezoning as a legislative act. Therefore, it is clear under our well-settled case law that the zoning or rezoning of property is a legislative act.

Based upon the General Assembly’s delegation of unrestricted legislative authority to city councils in rezoning matters, in that property may be rezoned “by a majority vote of the city council” without following the procedures set forth in Ark. Code Ann. § 14-56-422 , and based upon our case law that unequivocally characterizes zoning and rezoning as legislative acts, I am compelled to conclude that rezoning may be the subject of an initiative process under Amendment 7. Indeed, this conclusion was foreshadowed over twenty-five years ago by Justice Conley Byrd’s dissenting opinion in Wenderoth, supra:

Of course in matters involving legislative functions of city councils there is a right of referendum. But a change in the designation for which property may be used from single family to commercial or industrial, in accordance with the criterion established by an existing zoning ordinance, is nothing more than an exercise of a conclusion upon the facts presented or known. However, by today’s decision, it is now a legislative matter, subject to the popular will of a city’s inhabitants either through their elected officials or by their own vote in an initiative and referendum or both.

For these reasons, I respectfully dissent.

CORBIN, J., joins in this dissent.