Wenderoth v. Freeze

John A. Fogleman, Justice,

dissenting. Perhaps the fundamental basis of my disagreement with the majority stems from a difference in concept as to the importance of the role of the Fort Smith City Planning Commission in this matter. After adoption, a zoning plan, which may be recommended by a city planning commission, is effectuated by a zoning ordinance adopted by the city governing board. Ark. Stat. Ann. § 18-2829 (Repl. 1968). Such an ordinance may be altered or amended by the council either with or without the recommendation of the city planning board. Ark. Stat. Ann. §§ 19-2829, -2830 (Repl. 1968). The action of the city council may be appealed to the circuit court of the county wherein the city lies for a trial de novo according to the same procedure which applies to appeals in civil actions. This appeal, like the appeal from a- municipal court or county court, requires a complete new trial as if the city governing board and the planning commission had never acted. Ark. Stat. Ann. § 19-2830.1 (Repl. 1968). City of Little Rock v. Leawood Property Owners Assn., 242 Ark. 451, 413 S. W. 2d 877; Arkansas Power & Light Co. v. City of Little Rock, 243 Ark. 290, 420 S. W. 2d 85; Ark. Stat. Ann. §§ 44-504, -509 (Repl. 1964); Ark. Stat. Ann. §§ 27-2006, -2007 (Repl. 1962); Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706; Gocio v. Harkey, 211 Ark. 410, 200 S. W. 2d 977.

On such a trial de novo, the circuit court tries the cause upon its merits, and determines the same by the exercise of its own judgment and discretion to the same extent that the agency from which the appeal was taken might have done. Thornton v. Allen, 101 Ark. 106, 141 S. W. 499; Stephens v. School Dist. No. 85, 104 Ark. 145, 148 S. W. 504. It is the duty of the circuit court to hear any admissible evidence that either side desires to present. Garland County Board of Election Commissioners v. Ennis, 227 Ark. 880, 302 S. W. 2d 76. Objections to procedures in the tribunal from which the appeal has been taken are futile and unavailing. Arkansas Cotton Growers Co-op Assn. v. Brown, 179 Ark. 338, 16 S. W. 2d 177; Martin v. State, 46 Ark. 38. The circuit court does not pass upon any question as to an erroneous ruling made by the agency from which the appeal is taken. Stephens v. School Dist., supra; Thornton v. Allen, supra; Batesville v. Ball, 100 Ark. 496, 140 S. W. 712. Irregularities in procedure in the tribunal from which appeal is taken are immaterial, where appellate trial in circuit court is de novo. Nooks v. City of Van Buren, 206 Ark. xix, 174 S. W. 2d 443; Mayfield v. State, 160 Ark. 474, 254 S. W. 841; Simpson v. State, 193 Ark. 623, 101 S. W. 2d 795.1 Error in the sustaining of a demurrer by a court of limited jurisdiction has been held not to justify remand by the circuit court on appeal, rather than trial of the case on its merits. Dean v. Bush, 193 Ark. 1179, 97 S. W. 2d 429. We have heretofore called attention to the fact that even denial of constitutional right to counsel is not invaded, where an accused has the right to trial de novo on appeal where he is represented by counsel. Cableton v. State, 243 Ark. 351, 420 S. W. 2d 534.

Instead of taking their appeal to the circuit court, appellants chose to apply to the chancery court for relief. In their original petition there, appellants alleged that the city’s Board of Directors (not the planning commission) abused its discretion in allowing the zoning change. Appellants further stated in this pleading and repeated in an amended petition that “This peti-, tion is in the form of an appeal from the action of the hoard of Directors. . . .” (Emphasis mine.) By their amended petition appellants alleged that the abuse of discretion of the board of directors was in granting the zoning change, with knowledge of the improper and arbitrary manner of the hearing conducted by the planning commission, the decrease in value of surrounding property that said grant would cause and the increase in traffic which would endanger children attending Echols School. Appellees answered and the record discloses that appellant Collier Wenderoth and his attorney were present and participating at the meeting at which the rezoning action was taken by the board of directors and were given and availed themselves of an opportunity to present any objections or evidence concerning the matter.

The chancery court proceeded to determine the issue raised by appellants’ petition, i. e., whether the action of the City of Fort Smith was arbitrary, unreasonable and an abuse of discretion. In setting out his findings, the chancellor stated that, had the matter stopped with the planning commission action, it might well have been an abuse of discretion, but continued, saying that the commission only recommended the change to the board of directors, and that, at a full and complete hearing by that board, appellants’ objections (which were the same as those made in the chancery proceedings) were considered. The court held that appellants had failed to show that the action of the board was arbitrary, unreasonable or in abuse of its discretion. The court then proceeded to make these findings:

“Comment should be made with reference to the traffic conditions and noise, as well as. the project itself proposed upon the property concerned. While these complaints are speculative at this stage, testimony pro and con was taken and considered both by the City and this Court. The project proposal concerned would open an avenue not presently opened between Kinkead and Grand Avenue for handling traffic, as well as afford sidewalks not presently existing according to the testimony and evidence. Further, the proposed apartment complex project would act as a buffer for noise from Interstate No. 540, and there is substantial evidence that one of the highest and best uses of the property sought to be rezoned is the proposed project and that it would not, of itself, devalue the property of the Petitioners or the surrounding area. These matters were all presented to and considered by both the Planning Commission and the City Board of Directors and are supported by substantial if not the preponderance of evidence in this case on trial before the Chancery Court in support of the City’s action.”

The record discloses that Collier Wenderoth testified at length on the merits of the rezoning. He also presented five witnesses who testified on the merits. No evidence offered by appellants was rejected. One of the owners of the company seeking the rezoning and two real estate experts also testified as to the propriety of the zoning.

Appellants had the opportunity to and did present to the board, the agency having the power to act in the premises, any and all evidence that they could have presented to the planning commission. They could have presented to a circuit court for a de novo determination any and all such evidence and all the evidence presented to the chancery court. They do not seek to show here that the chancery court’s review was not broad enough. They merely argue that it erred in holding that the action was not arbitrary.

In the first place, it seems to me that the chancellor was correct when he held that even if the commission’s action was an abuse of discretion, appellants had a full and complete hearing by the city’s governing board. Furthermore, appellants cannot say that they were prejudiced by their inability to present any objection or evidence to the planning commission, because they had a right to trial de novo in the circuit court. Under these circumstances it seems illogical to me to say that a procedural error, even if an arbitrary one, can have the effect given it by the majority. If so, it behooves one objecting to planning commission action to bypass his right of hearing before the city governing board and his appeal to the circuit court in favor of an effort to have the city’s action held invalid as arbitrary. This does not seem rational to me.

The scope of chancery court review and the limitations on its relief have been clearly defined.2 A chancery court may declare a zoning ordinance void when, and only when, it can say that the action of the authority having power to zone, is clearly unreasonable, arbitrary and capricious or an abuse of discretion. Economy Wholesale Co. v. Rodgers, 232 Ark. 835, 340 S. W. 2d 583; Herring v. Stannus, 169 Ark. 244, 275 S. W. 321; City of Little Rock v. Garner, 235 Ark. 362, 360 S. W. 2d 116; Olsen v. City of Little Rock, 241 Ark. 155, 406 S. W. 2d 706; City of Little Rock v. Joyner, 212 Ark. 508, 206 S. W. 2d 446; City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883. In the sense used in these cases, we have said that “arbitrary” means “decisive but unreasoned,” or “arising from unrestrained exercise of the will, caprice or personal preference, based on random or convenient selection or choice, rather than on reason or nature” and that “capricious” means “not guided by steady judgment or purpose.” City of North Little Rock v. Habrle, 239 Ark. 1007, 395 S. W. 2d 751; City of Little Rock v. Parker, 241 Ark. 381, 407 S. W. 2d 921.

It is the application of the ordinance to the property in question that must be unreasonable and arbitrary, not the procedure by which the result was reached. City of Little Rock v. Hunter, 216 Ark. 916, 228 S. W. 2d 58. I have made an exhaustive search, but have been unable to find any case where any question except the end result of city action, i. e., the classification actually made by the city or its application to the property involved, has been considered as determinative of the validity of the municipal action. I have likewise been unable to find any case where the determination was made by this court upon purely procedural errors which were not jurisdictional. On the other hand, a decree holding that city council zoning action was reasonable was sustained even though there was testimony, apparently by an alderman, that the council members had a “gentleman’s agreement” to follow, or vote according to, the recommendation of the councilman from the ward involved on the premise that the alderman in a ward was in close touch with the situation. McKinney v. City of Little Rock, 201 Ark. 618, 146 S. W. 2d 167.

It has also been held that before the courts will invalidate a zoning ordinance, the property owner must first exhaust his administrative remedies before he can seek equitable relief. City of Little Rock v. Hunter, supra. While' appellants did so in this case, that rule would be meaningless, if the property owner could seek relief from the city governing board and still ask judicial relief because of improper or erroneous action on the part of the planning commission. If a property owner can do this, then the courts should pass upon the planning commission action without first relegating a property owner to his administrative remedies.

Abuse of discretion on the part of the planning commission in refusing the continuance is at least questionable. Appellants had notice of the meeting of the planning commission in ample time that they could see that a representative appeared to seek a continuance of the hearing. Even though the messenger who appeared on this mission was not appellants’ regularly retained attorney, he was the partner of that attorney. The attorney who appeared was unable to state the Wenderoths’ objections to the commission. No reason is given for the failure to communicate to him the basis .of appellants’ objections so that the commission might be apprised of it. Certainly, the commission was entitled to know the basis of the objections being made in order to determine the propriety of the request. It could not even know whether the presence of appellants or their regularly retained attorney was essential to presentation of the objections they were urging.3 Since it was being called upon by appellants to exercise its discretion to grant a continuance, it was entitled to have adequate information. Any other rule would make conduct of the business of a city planning commission difficult, if not impossible, because few meetings involving such matters of community interest can be scheduled without conflicting with other important appointments of an interested party or attorney.

I see no need to outline the testimony before the trial court. It seems to me that it cannot be said that the chancellor’s finding was clearly against the preponderance of the evidence.

Byrd, J., joins in this dissent.

For an application of a virtually identical rule to proceedings of an administrative agency, see State v. Pollock, 251 Ala. 603, 38 So. 2d 870, 7 A. L. R. 2d 757 (1948).

Árkansas Statutes Annotated § 19-2830.1 (Repl. 1968) certainly does not enlarge the scope of chancery court review, and appellants do not so contend. In spite of the language giving the right of appeal in addition to existing remedies provided by law, it may well be that trial de novo on appeal would deprive the equity court of jurisdiction because of adequacy of the remedy at law, if proper objection was made. See Rockefeller v. Hogue, (April 21, 1969), 439 S. W. 2d 805; McGehee v. Mid South Gas Co., 235 Ark. 50, 357 S. W. 2d 282. Since the chancery court is not wholly incompetent to grant the relief sought by appellants, appellees waived the question by answering without reserving any objection on this ground. Reid v. Karoley, 232 Ark. 261, 337 S. W. 2d 648.

The same attorney who appeared before the planning commission also tried this case in the chancery court and argued the case orally here.