dissenting. After today’s decision, the City of Little Rock will have two city planning commissions, not one, which will have the power to determine land use. Obviously, when those two commissions differ in the future on what uses the land within historic districts may be put, a conflict again will be ripe for more litigation similar to that posed here. The Little Rock City government — which represents the Historic Commission in this case — then will be placed in the ironic position of arguing the other side of this lawsuit, now argued by the Second Baptist Church. While the majority court refers to the “limited power” of the Historic Commission to consider use only when denying a certificate of appropriateness under the Historic Districts Act, that so-called limited power will prove most frustrating to the city when the Historic District Commission, in the future, disagrees with the city planning commission’s decision to put property within a historic district to a use with which the Historic Commission disagrees. Since this decision impacts municipalities and historic commissions elsewhere in the state, I submit the potential conflict I describe is inevitable.
Actually, my concern is not that conflicts or litigation will inevitably occur between city governments (planning commissions) and historic commissions. Rather, my point is that I find it difficult to believe the General Assembly, when it enacted the Historic Districts Act, had intended that our municipalities’ right to zone or to determine the use of properties within their corporate limits should in any way be shared or diminished. I believe a fair and reasonable interpretation of the Act bears out my position.
The two statutory provisions of the Act in issue here are Ark. Stat. Ann. §§ 19-5005 and -5006 (Repl. 1980). Those laws in relevant part provide:
§ 19-5005. No building or structure. . . shall be erected, altered, restored, moved, or demolished within an (sic) historic district until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to and approved by the Commission . . . For purposes of this act [§§ 19-5001 — 5011] “exterior architectural features” shall include the architectural style, general design and general arrangement of the exterior of a structure, including the kind and texture of the building material and the type and style of all windows, doors, light fixtures, signs and other appurtenant fixtures. The style, material, size and location of outdoor advertising signs and bill posters within an (sic) historic district shall also be under the control of the Commission. (Emphasis supplied.)
§ 19-5006. [T]he commission shall not consider interior arrangement or use and shall take no action under this act except for the purpose of preventing the construction, reconstruction, alteration, restoration, moving or demolition of buildings, structures or appurtenant fixtures, in the Historic District obviously incongruous with the historic aspects of the District. (Emphasis supplied.)
In reading § 19-5006, it becomes immediately apparent that the General Assembly mandated that historic commissions shall not consider interior arrangements or use when taking action under the Act. Nevertheless, the Little Rock Historic District Commission ignores those plain words of proscription, and argues, quite imaginatively and obviously persuasively to this court, that the remaining language in § 19-5006 permits a historic commission to consider use only to prevent any construction that is incongruent with the historic aspects of a district. I am surprised the majority accepted such a suggestion of legislative intent.
One need only ask two questions to see the fallacy in the Historic Commission’s argument. If the Commission’s argument were true, why did the General Assembly, under § 19-5006, prohibit historic commissions from considering use at all? If the General Assembly intended historic commissions to have zoning powers over the use of property within a district, why didn’t it provide for it in the Act? Clearly, no express provision granting such power is contained in the Act. Knowing the General Assembly is well aware of how to provide such power leads me to one conclusion: It did not intend to grant it. To accept the Little Rock Historic District Commission’s interpretation of this legislation is like saying, “You shall not consider use, however, you may do so when you deem it necessary.”
I submit the correct interpretation of § 19-5006 can be understood only by considering it in light of the language in § 19-5005. Section 19-5005 provides “no building or structure” can be erected within a historic district until the commission approves an applicant’s request for a certificate of appropriateness “as to exterior architectural features.” Thus, in reading §§ 19-5005 and -5006 in harmony, the General Assembly expressly provided that a historic commission has power to approve the exterior architectural features of any building or structure to be erected in the district; it cannot consider interior arrangement or use when considering its action; except it may prevent any construction incongruous with the historic aspects of the district until the exterior architectural design of the construction is approved by the commission. Sections 19-5005 and -5006 expressly provide no more and no less than a historic commission’s authority to control the exterior design of structures within its district. This court’s decision to say otherwise can only be labeled judicial legislation.
Purtle, J., joins in this dissent.