dissenting. This is an appeal from a judgment holding that the Little Rock City Directors’ refusal to rezone property from “A” to “F,” or from residential to commercial use, was arbitrary and capricious. The question here is whether the chancellor’s decision was clearly erroneous or clearly against the preponderance of the evidence. A. R. Civ. P. 52.
The property in question is roughly 1.8 acres located on the southeast corner of the intersection of Rainwood Drive and Green Mountain Drive in the City of Little Rock. The Planning Commission recommended against, and the Board of Directors turned down, the appellees’ request that the land be rezoned from “A,” which is single family residential, to “F,” which is commercial, zoning. The chancellor, after a hearing, determined the board acted in an arbitrary and capricious manner. His decree stated as his reason that the property in question is in an “established and expanding business district.” In defining the “business district,” the trial court and the majority here considered all the property in an at least 65-acre area bounded by Rodney Parham Road on the north, 1-630 on the east and Green Mountain Drive on the west.
The “established and expanding business district” test applied by the chancellor is based upon our supreme court’s decision in Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925). That case used the above-quoted language in holding that: “[w]hen a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.” 169 Ark. at 1031. That language has, of course, been limited over the years, and in Baldridge v. City of North Little Rock, 258 Ark. 246, 523 S.W. 2d 912 (1975), and City of Conway v. Housing Authority, 266 Ark. 404, 584 S.W. 2d 10 (1979), the supreme court made it clear that the mere fact that property is located adjacent to commercial property does not entitle its owner to a rezoning for commercial use. The main question presented in this case, and glossed over by the majority, is the definition of “established and expanding business district.”
My problem with the appellee’s argument and the chancellor’s decree is that there is hardly any evidence that the land in question here was in an “established and expanding business district.” The land to the north, across Rainwood Drive is zoned G-l (commercial), but it has not been commercially developed. To the immediate west is a large apartment (residential) complex area zoned “D.” To the immediate south and on some of the east boundary is an area occupied by some “mini warehouses” which serve mostly as boat storage facilities for persons who dwell in the nearby apartments, and which constitute a non-conforming use in an area zoned “A.” The remainder of the property on the immediate east is zoned “A” and is largely undeveloped. There is a day care center just south of the “mini warehouses.” That is a commercial, non-conforming use, consisting of a single family dwelling converted to that use.
Thus, there is no actual commerical development on any property that is adjacent to the land in question. The most that can be said for the trial court’s application of the Pfeifer rule is that the land to the north is zoned commercial, but is not so developed, and the adjacent land to the south is subject to a non-conforming industrial use.
The only case cited by the appellees in the portion of their brief devoted to showing how the Pfeifer principle should be applied in their favor here is Metropolitan Trust Co. v. City of North Little Rock, 252 Ark. 1140, 482 S.W. 2d 613. The case is cited for the proposition that it was proper for the chancellor to consider the zoning of the adjacent lands. I agree, but the mere existence of the “G-l” land across the street does not constitute much to establishment of a preponderance of the evidence. One look at the Metropolitan Trust case is enough to show why the principle of Pfeifer required zoning there but not here. The land in question was the southwest quandrant of the intersection of Highway 67-167 and McCain Boulevard, two primary traffic arteries, and all of the other three quadrants were zoned commercial. Even the vacant land in question had been in commercial use before it was annexed to North Little Rock. Thus, a determination there that the area was not in an “established and expanding business district” was against the preponderance of the evidence, and that is what the supreme court held.
The appellees want us to look at the larger picture to include such a clearly commercial “strip” as Rodney Parham Road which is many blocks away, and other “F” and “G-l” zoned lands which are separated from the site by property zoned “A.” I know of no authority which would permit such an approach, and indeed I find it a dangerous one. That there is a good deal of commercial or potentially commercial property in an area 65 acres or more surrounding land under consideration which is less than two acres does not entitle the small piece to commercial zoning. In my opinion, to suggest that because there is commercial development in a 65-acre tract any property in that tract is entitled to commercial classification is to suggest the demise of zoning altogether.
Although the Pfeifer case was not specifically cited by our supreme court, the principle of the case as it has evolved, was dealt with in Lindsey v. City of Fayetteville, 256 Ark. 352, 507 S.W. 2d 101 (1974). The supreme court referred with approval to the chancellor’s decision of conditions surrounding the land sought to be zoned commercial which request the city board had denied. The conditions were strikingly similar to those here:
It also must be observed that the testimony equally shows by the aerial photo that although you must concede the existence and near proximity of light industry and commercial areas, and . . . the sewage pumping station, it is equally true that on two of the four sides of adjacent property, it is all residential .... [256 Ark. at 354]
Admittedly, the Lindsey case differs in that there the decision was to affirm the chancellor’s decision that the board’s action was not arbitrary and capricious. However, in none of the extensive number of cases reviewed in Lindsey was there a review of the circumstances surrounding the site being considered in terms suggested by the majority here. Application of the Pfeifer principle in Lindsey and all other cases of which I am aware was limited to consideration of the area adjacent to the site in question. Given my view that that limitation is appropriate and necessary, I find the preponderance of the evidence here clearly favored the appellant.
Other than their demonstration of the physical circumstances in the area, the appellees presented expert testimony which dwelt upon opinions as to how the property should have been zoned by the board. None of that testimony was sufficient to base the conclusion the board’s decision was arbitrary and capricious. The chancellor’s decree does not mention this testimony but is based upon facts demonstrable by the zoning code, an aerial photo and the planning commission report which was before the board. These matters were appropriately considered, but the decision was clearly against the preponderance of this evidence if the Pfeifer test is still to be applied.
The majority opinion quotes testimony mentioning the commercial type concrete work done by the appellees when the big tract was developed. I assume this work was done to meet the City’s requirements, but that it was done with the expectation of making a profit on the subdivision and with no guarantee that the property would subsequently be zoned to suit them when it was annexed.
Nor do I understand the majority opinion’s fixation on “highest and best use” which is not defined by it. If, as I suspect, in this context that means “most remunerative use,” then what piece of border line or even nearby property is protected against commercial rezoning?
In my opinion decisions like this one strike hard at the zoning concept. When the Pfeifer decision is properly applied, this is not even a close case. I find the failure of the majority opinion even to discuss the rationale of that case, which was the focal authority for the chancellor’s decision and the main bone of contention on this appeal, to be, to say the least, distinctive.
For all of these reasons, but mostly because .1 believe the majority has failed to apply correctly the Pfeifer case holding, I respectfully dissent.
Judge Penix joins in this dissenting opinion.