dissenting. Art. 2, § 22, Constitution of Arkansas (1874), states:
The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation.
The trial court held the application of the ordinance in question violated this constitutional provision, following City of Fayetteville v. S. & H., Inc., 261 Ark. 148, 547 S.W.2d 94 (1977). No argument is made that the signs do not constitute “private property” or that their forced removal does not involve taking, appropriating or damaging them.
Essentially, I understand the majority holds not only that an ordinance, as to signs erected in the future, can be sustained when based primarily or solely on aesthetic considerations, but also that pre-existing, non-conforming uses can be eliminated without payment of just compensation by an amortization ordinance primarily or solely for aesthetic purposes.
Although the majority is correct in stating the trend is toward upholding the amortization method of eliminating non-conforming uses, the cases are in conflict on this issue as they are on whether aesthetic improvement is a proper goal for which the police power may be invoked. For example see Board of Supervisors of James City County v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975); and Hoffman v. Kinealy, 389 S.W.2d 745 (Mo. 1965).
Art. 2, § 22 states that the right of property exists before and is higher than the sanction given it in the constitution itself, and it is in light of that view that we should interpret the further provision therein that private property shall not be taken, appropriated or damaged for public use without just compensation. As Professor Wright observes, the courts which have set the modern trend in this area would regard that view of property rights as obsolete. Wright, Zoning Laws in Arkansas: A Comparative Analysis, 3 U.A.L.R. L.J. 421, 435 (1980). However, it is the theory of property rights found in our constitution and not the theory of property rights adopted by courts of other states that binds us.
In Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975), we held that a property owner has vested rights in a pre-existing and non-conforming use of his property. Contrary to the suggestion of the majority, an affirmance here would not render almost non-existent the possibility of effective regulation. All we need to decide today is that the vested rights of an owner of private property cannot be taken without just compensation where its use is not inimical to the public health, safety and morals and the sole or primary justification for the taking is for aesthetic improvement. We recognized in City of Fayetteville v. S. & H., Inc., supra, that non-conforming uses can be eliminated by this very amortization ordinance when it is done in furtherance of the public health, safety or morals. Furthermore, where the purpose is not to promote the public health, safety or morals, the city can achieve its regulatory goals by exercising its power of eminent domain and paying just compensation.
I would affirm the chancellor.
Adkisson, C.J., and Holt, J., join in this dissent.