dissenting. I respectfully dissent because I think that the chancery court erred in holding that the action of the city authorities was arbitrary. I think the majority opinion is in error in ignoring decisions more recent than that on which it places its principal reliance—City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883. In commenting on this case in City of Little Rock v. Parker, 241 Ark. 381, 407 S. W. 2d 921, we said:
The statute in force at the time of Pfeifer was Act 6 of the Second Extraordinary Session of the General Assembly of 1924, and cities of the first class were authorized to establish zones limiting the character of buildings erected thereon. There were only three zoning classifications under that Act, one, that portion of the city where manufacturing establishments might be erected, two, those portions of the city where business other than manufacturing, might be carried on, and finally, those portions of the city set apart for residential purposes. Act 186 of the Acts of the General Assembly of 1957, Ark. Stat. Ann. § 19-2825 (Supp. 1965) is a comprehensive act authorizing cities of the first and second class to adopt and enforce plans “for the coordinated, adjusted and harmonious development of the municipality and its environs.” The purposes of the act are set out in Subsection a. as follows:
“The plan or plans of the municipality shall be prepared in order to promote, in accordance with present and future needs, the safety, morals, order, convenience, prosperity and general welfare of the citizens; and may provide, among other things, for efficiency and economy in the process of development, for the appropriate and best use of land, for convenience of traffic and circulation of people and goods, for safety from fire and other dangers, for adequate light and air in the use and occupancy of buildings, for healthful and convenient distribution of population, for good civic design and arrangement, for adequate public utilities and facilities, and for wise and efficient expenditure of funds.”
The Act itself consists of nine lengthy sections, including approximately forty sub-sections, and composing fourteen pages (Acts of Arkansas 1957), all dealing with the preparation of plans for the orderly growth of a city. * * * Section 8 provides that the provisions of the Act shall be construed liberally.
It is apparent that the passage of Act 186 of 1957, to some degree, necessarily modified our holding in Pfeifer, for a strict and literal interpretation of all the language in that case would certainly result in nullifying the effort by a city to coordinate development of lands, and, more than that, in effect, would nullify Act 186. The right and responsibility for classifying the various areas in the city are with the zoning authorities, and their decision will only be disturbed if it is shown that they acted arbitrarily.
In City of Little Rock v. McKenzie, 239 Ark. 9, 386 S. W. 2d 697, we stated that we must uphold the decision of the zoning authorities unless we can say that it is arbitrary and capricious, i.e., without any reasonable foundation. 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 capriious 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.
In Marling v. City of Little Rock, 245 Ark. 876, 435 S. W. 2d 94, we said:
We perceive that the chancellor was impressed, as are we, with an abundance of evidence pertaining to the danger of spot zoning. That danger was emphasized where, as here, there is no existing barrier to prevent the spreading of rezoning into the exclusively residential area to the north. Those residents have a stake in this case and are entitled to consideration. Appellant’s exercise of her rights of property must be recognized; however, we held in an early zoning case that her enjoyment of its use may be reasonably restrained so as not to cause injury to the property rights of her neighbors. See Herring v. Stannus, 169 Ark. 244, 275 S. W. 321 (1925). This is true even taough, as was said in Downs, the best and most remunerative use of the two lots in question might be for quiet business.
In Downs v. City of Little Rock, 240 Ark. 623, 401 S. W. 2d 210, we said:
The benefit to a few individuals cannot be allowed to override the best interests of the residents of the overall area. The Planning Commission has apparently spent long hours in rezoning property in the city of Little Rock with the view of establishing a long-range program, one that will best fit the needs of an expanding city in future years.
* * *
Probably, it would be most difficult to determine petitions for rezoning in any of the old additions without encountering individual cases of hardship, but the line must be drawn at some point. If this property were rezoned, where would the rezoning end? If these two lots are to be placed in a different category than “B” Residential District, why should not the lot just north of Lot 12 be placed in the same category—and so on ad infinitum?
In Tate v. City of Malvern, 246 Ark. 316, 438 S. W. 2d 52, we said:
* * * home owners who have relied on residential zoning are entitled to consideration and the use of a particular tract may be reasonably restrained so as not to cause them injury; and rezoning cannot be justified solely on the ground that it is necessary to put a particular tract to its most remunerative use.
In the same case, in speaking of spot zoning, we said:
The decided weight of authority is found in Yokley, Zoning Law and Practice, § 8-4, third edition (1965). It is there stated that the council can so amend a zoning ordinance when the character of a zoned area has become so changed that a modification is necessary to promote public health, morals, safety, and welfare; but mere economic gain to the owner of a comparatively small area is not sufficient cause to amend.
In City of Little Rock v. Gardner, 239 Ark. 54, 386 S. W. 2d 923, we said:
One of the main purposes of zoning and rezoning is to stabilize property values in a neighborhood, thus encouraging the most appropriate use of the land.
In City of North Little Rock v. Habrle, 239 Ark. 1007, 395 S. W. 2d 751, we said:
It is undisputed that appellee bought her property after the area was zoned. No doubt it will be a financial disadvantage for appellee if she cannot operate a beauty shop on her lot, but we do not understand this is necessarily any indication the Zoning Authorities acted arbitrarily when they refused to let her do so. In the McKenzie case, supra, we indicated we were not insensitive to hardships which sometimes result in a case of this kind, but said: "Yet in every case such as this one a similar loss in property value must be suffered by one side or the other.”
The Walter Morris home, valued at $75,000, and admittedly one of the finest in West Helena, is located immediately across the street. Numerous residences that are well maintained and exhibit pride of ownership are in the vicinity. A real estate man called to testify on behalf of- appellees stated that changing the zoning of this property to neighborhood commercial could be spot zoning.
Raphael G. Davidson, one of the appellees, testified that traffic on the street, which is Highway 49, is high. He numbers his customers at between 100 and 150 and states that the hours his business would be open are 9:00 a.m. to 8:00 p.m. He was prompted to buy the property because of its location, knowing the status of the zoning classification. He admits a traffic problem on Highway 49, but did not think that his business would have an effect upon it. At one time, he thought of the development of the property for residential purposes but abandoned the idea because his experience with rental property was not profitable, and he considered the expense great. He admitted he had not gone into any depth to determine these questions nor made a survey as to feasibility. He also considered the price of the property for development for residential purposes.
C. V. Barnes, a real estate consultant of Little Rock, called as an expert witness by the appellees, stated that spot zoning is poor practice. O. B. Porter, building official and plumbing inspector for West Helena for nine years, testified about building permits issued. One • of them was for the construction óf the A. E. Raff, 'home built in 1965 in the vicinity. He admitted that there had been considerable enlargement to the school 300 or 400 yards north of the highway and isolated from the property in question. Porter testified that the present zoning ordinance of the City of West Helena was adopted November 22, 1966.
R. E. McLendon, an alderman for the past 11 years, was present at the City Council meeting the date that the Davidsons’ petition for rezoning was heard. The recommendation of the Planning Commission to the City Council was that the zoning not be changed from the R-B Zone which permitted multiple dwelling. The vote of the Council rejecting the petition was unanimous. His reason for voting to reject was because the Planning Commission had studied the problems, and the city officials were trying to have an orderly growth of the city. He stated that since the adoption; of the zoning ordinance only one piece of property had been rezoned to neighborhood commercial. That was the Gann property about three blocks away. It was a neighborhood grocery store at the time of the adoption of the ordinance, which made its use nonconforming. It was across the street from a sawmill, and he could recall no opposition by the neighbors. This witness had operated the Pure Oil Station which was also a nonconforming use. It was his opinion that the rezoning of the property would increase the traffic.
James P. Baker, who had been a member of the first Planning Commission for several years, returned to it to serve as chairman in May 1958, and has served as such since that time. He said that in 1958 the city entered into a contract with the Planning Division of the University of Arkansas under the direction of Professor William S. Bonner. One of the purposes in the study conducted under that contract was to consider the future growth and development of the city so that it could be guided and directed in order not to victimize the city. The second phase of the contract with the University began about 1960, according to Baker, but in the meantime the Planning Commission had worked with the Research Planning Division of the Arkansas State Highway Department for a study of major streets and the future of both Helena and West Helena. He said that members of the Planning Commission actively engaged themselves in the planning. He felt that the zoning classification at the time the ordinance was adopted was sound and that it was in accordance with the master plan. He recalled six drafts of the zoning ordinance and that the real estate board was consulted. He referred to Highway 49 as a major artery between Helena and West Helena, carrying approximately 15,000 cars per day which he said affected the planning and zoning of any area. He stated that West Helena did not have very much property zoned neighborhood commercial, because there just wasn’t any demand or need shown for additional neighborhood commercial property. Baker testified that the Planning Commission conducted public hearings on the Davidson application, which was presented by the attorney for appellees and then referred to the zoning committee, which made a study and recommendation to the Planning Commission. The Planning Commission then held a public hearing, adjourned the meeting for a 10-day period and discussed the matter again. The Planning Commission vote was unanimous. Baker said that a previous owner’s request to rezone the property to commercial had been denied.
W. C. Dempsey, a member of the Planning Commission, considered the traffic problems in the area and considered that a business in that area would multiply the traffic. He also stated that there was a well-established residential area contiguous and adjacent to the property which he took into consideration. It was his opinion that the proposed zoning change would tend to reduce the value of the property in that area. He also felt that traffic to the business created some noise which would have a tendency to disturb worship services at the nearby Church of Christ. He could not see that rezoning this property would do anything other than decrease the value of the surrdunding property, and tend to make a commercial district creep into the area. It was his opinion that the property was more desirable and adaptable for multifamily dwelling.
J. C. Nixon, another member of the Planning Commission, testified that the last request of the former owner for rezoning was denied on November 22, 1966. It was his recollection that the public hearing on the Davidson request was- held on June 26, 1969. He explained the bowling alley as being in a location that the Planning Commission could not, under the law, deny a permit, that the Kream Freeze had been in its location for 20 years and that the Planning Commission had no control over the Arkansas Power and Light Company property. Robert W. Fey, another member of the West Helena Planning Commission, testified that once you establish the line between zones you have got to hold it and that changing this zoning would be the beginning of a hedging into the residential areas, a factor which he considered an important reason to vote to deny the request for rezoning. He too thought that the Davidson property was suitable for multiple houses.
Walter Morris testified that the principal reason for bringing the Morris property into the city limits was the desirability of the protection of a zoning ordinance, thinking that there would not be further encroachments in the residential area where their homes were constructed. Mrs. Lenora Hornor Morris protested because continued encroachments into the area would decrease the value of their property where she had maintained her home with the idea that the residential zoning would be maintained. William Bonner, a City Planner associated with the University of Arkansas since 1950, recommended the zoning of this tract of land and stated that if this property was used for commercial purposes then the only access would be from Andrews Street which would cause a traffic problem. He stated that the only thing the city could have done with reference to the zoning of the bowling alley was to make it a nonconforming use or to zone it as it was. It was his opinion that the proper use for the Davidson lot is residential, in view of the traffic and the neighborhood.
While it is true that we only determine the preponderance of the evidence, the question to which the determination must be related is whether or not the Planning Commission and the City Council acted arbitrarily and capriciously. It seems to me that this evidence shows anything except an arbitrary and capricious action, as we have defined it.
Of course, the courts cannot substitute their judgments for' that of the Planning Commission and the City Council. City of Little Rock v. McKenzie, 239 Ark. 9, 386, S. W. 2d 697. I cannot help but believe that the learned chancellor fell into error in this respect. In his findings of fact, he stated that, in consideration of the testimony in trying to analyze the proof, he had taken into consideration his own opinions formed by a visit to the area during a month’s sojourn in the city in the trial of other litigation and had viewed the premises and noted the activity of the bowling alley, the warehouse and office building of the Arkansas Power and Light Company and the Dairy Queen in the immediate area as well as the commercial activity on the south side of the highway as it proceeds into the City of Helena. He stated that, in his opinion, the area is highly commercial regardless of how the defendant may zone the area. Of course, we are not able to evaluate what the chancellor saw in determining the preponderance of the evidence.
I would reverse the decree.
I am authorized to state that Harris, C. J., joins in this dissent.