dissenting. This is a typical case of land grabbing and confiscation by cities for the purpose of collecting additional taxes from the property owners and farmers. This unfortunate lawsuit is about a forty acre farm near the city of Lowell, Arkansas. It was outside the city until the city government expanded about a day’s walk in each direction. By enactment of Zoning Ordinances 177, 222, and 238, the city reaches, like the tentacles of an octopus, into the property, home and life of every resident in the city of Lowell. It tells them how and when they may use their property and whether they can remodel or rent. Whatever use a property owner makes of his property, it must be approved by the city first.
Both the United States and Arkansas Constitutions protect property rights. However, state and local governments continually seem to hamper the citizens and inhabitants within their jurisdiction by issuing as many restrictions and decrees as possible. For example, Ordinance 238, enacted by the city of Lowell on July 8, 1986, establishes what it classifies as a comprehensive zoning ordinance. It is indeed comprehensive; it is also confiscatory and arbitrary. Apparently the uses and regulations to which this land is subjected were borrowed from the city of New York because there are about 400 land use classifications in the ordinance adopted by the city of Lowell, Arkansas, which probably has less than 400 buildings.
One of the classifications of lands in the city is agricultural. I suppose they intended to allow farmers to continue using their farmlands to farm. A farm without a house on it is of less value than it is with a house on it. The repealed ordinance allowed people to place a mobile home on each 20 acres of land. It so happens that the appellants own what amounts to two 20 acre parcels of land. They have a mobile home on the south side of the 40 acres, in which appellants’ mother lives, and a mobile home on the north side. It seems to me that this clearly comes within the classification allowing the one mobile home on each 20 acre plot, which was allowed by the repealed ordinance.
The chief argument presented by the appellant is that Ordinance 238 repealed all existing ordinances and “grandfathered” in existing land uses. Section 5 of Ordinance 238 states:
Non-conforming use of land and structures may be con tinued and improved but not expanded so long as it remains otherwise lawful.
Both mobile homes were in place and occupied prior to enactment of the present ordinance. It appears to me that the appellants have complied with the ordinance in the first place and secondly that the city repealed any prior ordinance and grandfathered in existing uses as of the date of the enactment of Ordinance 238. Additionally, I can see no reason whatsoever for excluding mobile homes from areas where other homes may be built. Simply because a person is financially unable to build a house on a site is not cause to deny him the right to move a mobile home onto his property. There are no classes of citizens established in the constitutions; neither are there any restrictions of property rights or degree of uses. These classifications are creatures of the cities which are themselves creatures of the state legislature. All people are supposed to be treated equal and afforded due process of law. The city has not only discriminated against farmers and mobile home owners but has also taken a valuable property right without just compensation and in violation of the Equal Protection and Due Process of Law clauses of the United States Constitution.
The Robertson farm was in existence long before the city of Lowell was established. The appellants are in conformity with the ordinance since they have a mobile home on the north side of the 40 acres and a mobile home on the south side of the 40 acres. Again, these mobile homes were in place before the existing ordinance was adopted. Since it repealed all existing ordinances and allowed existing non-conforming uses to continue, there is no reason why these people should be deprived of their right to maintain this property in the manner they have chosen. It is obviously not offensive to anyone except the city officials and is no doubt the most respectable and best use of the property. There is no more reason to allow a $250,000 home on less than 20 acres than there is to allow a mobile home on the same size plot. Such treatment tends to allow only the wealthy to use their land as they deem fit. Even a city does not have the right to deprive an individual or individuals of their constitutional rights.
I have no complaint against the city of Lowell which I do not have against all other cities and the state. I simply believe that government governs best which governs least. I can see no relevant state purpose in ordinances such as these.