concurring. I agree that this case should be reversed and remanded. However, I cannot subscribe to the majority’s effort to distinguish this court’s decision in Camden Cmty. Dev. Corp. v. Sutton, 339 Ark. 368, 5 S.W.3d 439 (1999). Specifically, this court will henceforth determine whether a zoning proposal is legislative or administrative in nature by looking at whether the city board passed or rejected the proposal. Additionally, I do not agree with the majority’s implication that the landowners’s cause of action accrued as early as February 12, 1991, when the City Planning Commission granted Summit Mall additional time to file a final plan.
Rezoning — Legislative Proposal
In Camden Community Dev. Corp. v. Sutton, 339 Ark. 368, 5 S.W.3d 439 (1999), a majority of this court held that a rezoning proposal was not legislative in nature. Thus, the court held that the proposal was not subject to the initiative process under Amendment 7 of the Arkansas Constitution. In that case, the Camden Community Development Corporation sought permission to rezone its property. Id. The City of Camden’s Planning Commission recommended the proposal, but it ultimately failed to be adopted by the City Board. Id. The appellant in Camden then managed to get its. petition to rezone on the general election ballot. Id. A trial court ruled that the “issues concerning whether to rezone are administrative decisions, not legislative, and thus are not subject to the initiative process.” Id. A majority of this court affirmed that ruling. Id.
The majority holding in Camden was stated as follows:
Specifically, we have determined that the facts of this case do not reflect the occurrence of any legislative action by the City Board . . . [T]he City Board’s decision to not accept the Commission’s administrative proposal was only a rejection of the proposed administrative action and did not constitute any legislative action or administrative action by the City Board.
Camden v. Sutton, 339 Ark. at 373, 5 S.W.3d at 442..Moreover, the majority labeled the planning commission’s recommendation to rezone as a “proposed administrative action.” Id. The court’s opinion noted the decision in Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971), in which we concluded that zoning ordinances were legislative in nature, and overruled Wenderoth to the extent that it was inconsistent with the majority opinion. Camden v. Sutton, supra.
I reiterate the thrust of my dissenting opinion in Camden: The majority erred in holding that a rezoning proposal rejected by the City Board is not legislative in nature. The fallacy in such a holding is particularly apparent in light of our holding in City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996), where the city council denied a zoning request that was not recommended by the planning commission. Nonetheless, we stated that “[i]n recent years, we have frequently written that the judicial branch does not have the authority to review zoning legislation de novo, as that would constitute an unconstitutional taking of the power of the legislative branch.” Lowell v. Mobile Home, supra. The Camden holding is even more remarkable in view of our recent statement in Murphy v. City of West Memphis, 352 Ark. 315, 101 S.W.3d 221 (2003), that zoning ordinances are legislative enactments. In fact, it is well-settled that zoning ordinances are as a general matter legislative actions. See Murphy v. City of West Memphis, supra; Lowell v. Mobile Home, supra; City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981); City of Conway v. Housing Authority, 266 Ark. 404, 584 S.W.2d 10 (1979). It necessarily follows that a recommendation to rezone is a recommendation to take legislative action.
Turning now to the dichotomy created by the majority’s attempt to distinguish Camden from the case at bar, the majority hinges its distinction upon whether a city board rejects or adopts a rezoning proposal. The majority also asserts that the facts in the Camden case are different. The only factual difference, however, between Camden and the instant case is that in Camden the City Board rejected the rezoning proposal recommended by the planning commission; whereas, in this case the City Board passed a rezoning proposal recommended by the planning commission. In both cases, the proposed zoning ordinances were properly before the City Boards pursuant to Ark. Code. Ann. § 14-56-422 (Repl. 1998). The majority opinion illuminates the grave error made by the Camden court; that is, Camden erroneously focused on the action taken by the City Board, as opposed to the nature of the proposal at issue. Moreover, the majority now compounds the error of law made in Camden.
Today this court has effectively bifurcated the people’s power under Amendment 7 to the Arkansas Constitution. Amendment 7 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.” According to the majority opinion in this case and in Camden, the people reserve the right to refer a rezoning ordinance enacted by the City Board, but do not reserve the power to initiate a rezoning ordinance. Amendment 7 does not support such a distinction. We have long held that Amendment 7 is to be liberally construed in order that its purposes may be effected. Greg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987); Leigh & Thomas v. Hall, 232 Ark. 558, 339 S.W.2d 504 (1960). Allowing rezoning to be subject to a referendum but not to an initiative process narrowly construes and distorts the powers granted in Amendment 7.
In sum, I believe that the majority opinion, in its valiant effort to distinguish Camden from the case at bar, improperly separates the initiative and referendum powers reserved to the people under Amendment 7. The plain language of Amendment 7 makes no such distinction. The legislative nature of a rezoning proposal is static; it does not change upon a vote by the legislative body. The Camden majority held that a rezoning proposal was not subject to the initiative process under Amendment 7. Thus, if we are to remain faithful to the Camden decision, the rezoning issue here should not be subject to a referendum under Amendment 7.
In concurring today, I merely reiterate my dissent in Camden. Rezoning is legislative in nature and subject to the people’s initiative and referendum powers under Amendment 7 to the Arkansas Constitution. Because the instant case and Camden are factually indistinguishable, I believe this court should acknowledge its mistake and overrule that decision.
Laches
In holding that the landowners’ complaint is barred by the doctrine of laches, the majority opinion relies primarily on our decision in Richards v. Ferguson, 252 Ark. 484, 479 S.W.2d 852 (1972). In that case, we applied the doctrine of laches based on a failure to timely attack a rezoning ordinance. In this case, the majority ties laches to a time extension approved by the City Planning Commission on February 12, 1991. While I agree that the time extension was a matter of public record, it is unnecessary to hold that the landowners’s cause of action accrued upon the City Planning Commission’s approval of a time extension because the landowners waited four years from the City Board’s enactment of an ordinance permitting a three-year time extension. In my view, the doctrine of laches precludes the landowners from seeking relief because they “slept upon their rights” after the City Board expressly extended the time for Summit Mall to file its final plan by the enactment in 1997 of Ordinance No. 17,423.