Because of their eagerness to affirm this case, the four-member majority court first rejected the only two theories the landowners, Vuncannons, argued below and on appeal. First, Vuncannons argued entitlement to compensation for their nine-foot strip of land abutting Nettleton Avenue because the taking of the property by the city constituted inverse condemnation. Second, they claimed Nettleton Avenue was a controlled-access street and that applicable law providing for acquiring property accessing such a street requires payment of compensation to the landowner. The majority court agrees, as I do, that neither of these theories have merit. But, instead of reversing and remanding this case as it should, the majority court offers a third legal theory under which Vuncannons’ award should be sustained. In doing so, it is not only dead wrong in its analysis of the law, it condescendingly presumes neither the attorneys for the respective parties nor the trial judge understood how to present or try this case.
Undisputedly, the city’s major street plan requires a one hundred-foot right-of-way for Nettleton Avenue which abuts Vuncannons’ lots. The city’s action in this respect is authorized by Ark. Code. Ann. §§ 14-56-417(b)(1)(A) and (B) and (b)(2)(B) (1987). Because of the rapid proliferation of subdivisions, legislatures, including Arkansas’s, have required developers to dedicate a portion of their land for certain public purposes, such as streets, parks, and schools, as a prerequisite to approval of their plot or subdivision. E. McQuillan, The Law of Municipal Corporations, § 33.05.10 (1991).
The majority court asserts that neither the Vuncannons nor their predecessors in title have ever dedicated their lots alongside Nettleton Avenue and that, because no such dedication previously took place, the city cannot now require such a right-of-way without compensation. The court cites no law for this declaration, and I suggests its failure to do so is because no such requirement exists. In fact, § 14-56-414(d) (1987) reflects the contrary is true. That provision provides as follows:
(d)(1) Master Street Plan. The commission may prepare and adopt a master street plan which shall designate the general location, characteristics, and functions of streets and highways.
(2) (A) The plan shall include the general locations of streets and highways to be reserved for future public acquisition.
(B) The plan may provide for the removal, relocation, widening, narrowing, vacating, abandonment, and change of use or extension of any public ways.
Here, the City of Jonesboro provided a one-hundred foot right-of-way along Nettleton Avenue, which borders Vuncannons’ lots, in Turtle Creek Ranch Addition, which is a part of the city. The city’s plan provided a right-of-way for the avenue so the avenue could be widened in the future. In seeking replat of their lots into one, the plat the Vuncannons submitted to the Metropolitan Area Planning Commission was erroneous because it failed to comply with the city’s street plan and it did not reflect the one hundred-foot right of way along Nettleton Avenue. In other words, all the city asked the Vuncannons to do was to correct their plat so as to show the entire right-of-way rather than the forty-one feet their erroneous plat reflected. Contrary to the majority court’s view of it, there is no meaningful distinction between the case here and this court’s decision in Newton, Circuit Clerk v. American Security Company, 201 Ark. 943, 148 S.W.2d 311 (1941). In Newton, the court upheld the Pulaski County Planning Board’s decision to withhold approval of the property owner’s plat until the owner dedicated an additional ten-foot strip of land abutting a county road so the minimum right-of-way requirement contained in the county road master plan was met.
As I read the majority opinion, the city need not pay compensation for dedicated streets, rights-of-way and set backs if such public acquisitions are dedicated and in use at the time a subdivision is added to the city. However, compensation must be paid a property owner with a strip of land located within a right-of-way or set back shown on a city’s master street plan if that strip of land was not in actual use when the subdivision was accepted by the city.
In the present case, Nettleton Avenue has a one hundred-foot right-of-way, but only part of it is used for street purposes; the remaining part of the right-of-way was reserved by the city for widening into a five-lane street when traffic increased. Of course, the Planning Commission anticipated such an increase in traffic and the Vuncannons’ building a shopping center abutting Nettleton Avenue reflects and enhances the anticipated increase.
In conclusion, if the parties had known the legal theory upon which the majority members of this court would decide this case, I have no doubt that the city and the Vuncannons would have presented evidence specifically bearing on such a theory. The parties and the trial judge will be amazed when reading the majority opinion and will, I conjecture, barely recognize this case as the one they tried. Worse yet, municipal officials will be left scratching their heads wondering what our court has done to existing statutory law bearing on subdivision master street plans, rights-of-way and set backs.
Because I would reverse and remand this case, I dissent.
Hays and Corbin, JJ., join this dissent. SEPTEMBER 28, 1992 Bill Penix and J. Robin Nix II, for appellant. Kelley Webb, for appellees.