{ "id": 1606979, "name": "Arkansas Release Guidance Foundation v. James Hummel, et al", "name_abbreviation": "Arkansas Release Guidance Foundation v. Hummel", "decision_date": "1969-01-13", "docket_number": "5-4678", "first_page": "953", "last_page": "964", "citations": [ { "type": "official", "cite": "245 Ark. 953" }, { "type": "parallel", "cite": "435 S.W.2d 774" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "54 N.E. 2d 329", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "199 Ark. 333", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456565 ], "opinion_index": 0, "case_paths": [ "/ark/199/0333-01" ] }, { "cite": "167 Ohio St. 91", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 1724529 ], "opinion_index": 0, "case_paths": [ "/ohio-st/167/0091-01" ] }, { "cite": "146 N.E. 2d 308", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ohio App. 213", "category": "reporters:state", "reporter": "Ohio App.", "case_ids": [ 1428770 ], "opinion_index": 0, "case_paths": [ "/ohio-app/104/0213-01" ] }, { "cite": "142 N.E. 2d 231", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 } ], "analysis": { "cardinality": 876, "char_count": 19092, "ocr_confidence": 0.431, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.41130950105585307 }, "sha256": "99d0bc61a599332301342590b60c89e5f992f42a347b8cc052272bbfe5157941", "simhash": "1:91c1448aa364fd11", "word_count": 3084 }, "last_updated": "2023-07-14T16:29:50.317094+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, J., not participating." ], "parties": [ "Arkansas Release Guidance Foundation v. James Hummel, et al" ], "opinions": [ { "text": "J. Fred Jones, Justice.\nThis is an appeal by Arkansas Release Guidance Foundation from an adverse decree of the Pulaski County Chancery Court on a petition for a declaratory judgment filed by the appellant. The question presented is whether a \u201cHalfway House\u201d as proposed by the appellant, is an \u201cinstitution of an educational, religions or philanthropic nature\u201d permitted in a class \u201cD\u201d apartment district under the zoning ordinances of the City of Little Rock.\nThe appellant, Arkansas Release Guidance Foundation, was incorporated as a domestic nonprofit corporation on October 20, 1967, for the following corporate purposes:\n\u201cTo acquire and operate one or more places of residence for ex-penitentiary inmates where they may reside temporarily after having been paroled, released or after having completed their sentences and during the difficult transition period from a penitentiary inmate to a completely independent free world citizen;\nTo provide for ex-prisoners during this transition period room and board, individual counseling, educational and vocational training, job placement services, physical and mental health services, and other rehabilitative services of like kind and nature;\nTo provide rehabilitative facilities and services in kind and nature as described above for offenders placed on probation.\u201d\nThe appellant purchased two adjacent two and one-half story residential buildings at 2115 and 2121 Arch Street in the City of Little Rock, and on January 30, 1968, filed with the Department of Community Development for the City of Little Rock, applications for certificates of occupancy. The applications set out that the property was located in a residential zoning district \u201cD\u201d of the City of Little Rock. Both applications were practically the same, and the one for 2115 Arch Street stated as follows :\n\u201cThe Arkansas Release Guidance Foundation is a non-profit organization incorporated under Arkansas law. It proposes to operate this and the adjacent property (2121 Arch Street) as a \u2018group house\u2019 for single, male, ex-prisoners paroled or discharged from prison. Probationers may also be eligible for residence. The property will serve as a temporary residence for these men until they are able to become fully self-sufficient. These men will live no more than two to an apartment unit and there will be no more than ten such house residents at this location at any given time. Breakfast and the evening meal will be served to the residents of both houses in a dining hall located in the house at the above address. The noon meal will be eaten out. This house will have resident, full-time, house parents, consisting initially of a man, his wife and their minor children. This person will be a paid staff employee of the ARGF. As nearly as possible, a family atmosphere will be created for the house residents. In addition to the house parents, the full-time, paid Executive Director of the ARGF will be on duty at the house much of the time. Inspections of the premises have already been made by municipal building, health and fire authorities and the ARGF intends to comply with all municipal code requirements in connection therewith prior to commencing operation as a \u2018group house\u2019 as above described.\u201d\nOn February 2, 1968, the appellant was advised by the director of the Department of Community Development that certificates of occupancy would be issued as requested when the municipal code requirements as to inspections of the property were complied with. In the meantime thirteen property owners in the vicinity of appellant\u2019s property filed petitions with the city remonstrating against the proposed use of appellant\u2019s property, and the appellees threatened the appellant \u25a0with legal action to prevent the operation of the proposed Halfway House at the proposed addresses.\nOn February 6, 1968, because of threatened litigation, the appellant filed its petition for a declaratory judgment in the Pulaski County Chancery Court naming the thirteen remonstrating individual property owners as defendants. The prayer of the petition was for a declaratory judgment and determination that \u00a3 \u2018 said Halfway House may be properly and legally operated within said class \u00a3D\u2019 zoning area\u201d and that the court declare and determine the appropriate zoning classification of the plaintiff\u2019s Halfway House facility under the zoning regulations and code of ordinances of the City of Little Bock, and that said Halfway House facility be declared appropriately located in said class \u201cD\u201d zoning district.\nThe appellees filed their answer praying a dismissal of the petition filed by the appellant, and in the alternative, that the appellant be permanently enjoined from the operation of the facility at the proposed site.\nAfter hearing testimony on both sides of the issue, on April 24, 1968, the chancellor rendered a decree as follows:\n\u201cThe Court, being well and sufficiently advised as to all matters of fact and law arising herein, and the premises being fully seen, finds that the use or proposed use to which the Halfway House facility is, among others, to be put is for the quartering, housing or keeping of convicts, including probationers and parolees, and that this is not a proper use to which the property located in Class \u00a30\u2019 or \u00a3H\u2019 zoning district in the City of Little Bock, Arkansas may be put; and that the operators of the Halfway House facility should be enjoined and restrained from using said property for such purposes.\nIt is, therefore, by the Court considered, ordered and adjudged that the prayer of the Complaint insofar as it requests usage of said property for the above purposes be, and it is hereby denied. The Plaintiff, its agents, officers and \u00a1employees are hereby permanently enjoined and restrained from using the Halfway House facility on the property located at the Northeast corner of the intersection of 22nd and Arch streets in the City of Little Rock, Arkansas, designated as 2115 and 2121 Arch Street for the quartering, housing or keeping of convicts, including probationers and parolees. All costs herein are adjudged against the Plaintiff.\u201d\nOn appeal to this court the appellant relies on the following points for reversal:\n\u201cThe court erred in finding appellant\u2019s proposed use of its property to be in violation of the applicable zoning classification.\nTo the extent that the court may have found appellant\u2019s proposed use of its property to be a nuisance, if at all, the court erred.\u201d\nThe City of Little Rock draws its zoning authority from Ark. Stat. Ann. \u00a7 19-2805 (Repl. 1968) which provides as follows:\n\u201cCities of the first and second class are hereby authorized to establish zones limiting the character of buildings that may be erected therein. Such zones may be of three [3] classes: First, portions of the city where manufacturing establishments may be erected or conducted; Second, portions of the city where business other than manufacturing may be carried on; Third, portions of the city set apart for residence.\u201d\nArkansas Statute Annotated \u00a7 19-2806 (Repl. 1968) provides as follows:\n\u201cWhen the city council shall have laid off such zones it shall not be lawful for anyone to construct or carry on within a given zone any business not authorized by the ordinance of such city establishing the same, unless with special permission granted by the council of said city, or by a commission which it may create for the purpose of determining whether an exception shall be made in the particular instance; and such exceptions shall be made only for good cause, and in ease of abuse the adjacent property owners shall have the right to appeal to the courts of chancery to protect their property from depreciation by reason of the setting up of such exceptional business within the zone.\u201d\nLittle Rock Municipal Ordinance No. 5420, as amended, was passed under authority of the aforesaid statute, and \u00a7 43-4 \u201c0\u201d of the ordinance pertaining to \u201cC\u201d two-family districts provides as follows:\n\u201cIn the \u2018O\u2019 two-family district no building or land shall be used and no building shall be hereafter erected, converted or structurally altered, unless otherwise provided in this chapter, except for one or more of the following uses:\n(1) Any use permitted in the \u2018A\u2019 one-family district and the \u2018B \u2019 residence district.\n(2) Two-family dwellings.\n(3) Reserved.\n(4) Institutions of an educational, religious or philanthropic nature. * * *\u201d\nAppellant\u2019s property is in a \u201cD\u201d zone district and \u00a7 43-5 of the ordinance provides:\n\u201cIn the \u2018D\u2019 and \u2018E\u2019 apartment districts no building or land shall be used and no building shall be hereafter erected, converted or structurally altered, unless otherwise provided in this chapter, except for one of the following uses:\n(1) Any use permitted in the \u2018O\u2019 two-family district.\u201d\nThe appellant contends that its proposed use of its property as a Halfway House is permissible under the ordinance and the appellees contend that it is not. The parties seem to agree, however, that if appellant\u2019s proposed use of its property is permissible under the ordinance, the permission is to be found under Subsection 4 of \u00a7 43-5 \u201cC,\u201d supra, applicable to \u201cinstitutions of an educational, religious or philanthropic nature.\u201d\nNeither the appellant nor the appellees have cited any case, and our own research has revealed none, in which any state court has considered the use of property as a Halfway House for parolees and released convicts as institutions of an educational, religious or philanthropic nature within the terms of a zoning ordinance.\nThe ordinance involved here contains 63 definitions of the words and terms used therein, and \u201ceducational institution\u201d is defined as follows:\n\u201cA public, parochial or private pre-primary, primary, grammar or high school; a private preparatory school or academy providing courses of instruction substantially equivalent to the courses offered by public high schools for preparation for admission to college or universities which award B.A. or B.S. degrees; a junior college, college or university either public or parochial or founded or conducted by or under the sponsorship of a religious or charitable organization, or private when such junior college, college or university is not conducted as a commercial enterprise for profit. Nothing in this definition shall be deemed to include trade or business schools or colleges.\u201d\n\u201cReligious\u201d and \u201cphilanthropic\u201d are not defined by the ordinance, nor is an institution of a \u201creligious or philanthropic nature\u201d defined.\nThe appellees were all residents of the same \u201cD\u201d zone or district where appellant\u2019s -property is located, so certainly the chancellor did not err in restricting his decree to the \u201cD\u201d zone in which the parties defendant lived. (See Ark. Stat. Ann. \u00a7 34-2510 [Repl. 1962]). So the question here is whether appellant\u2019s proposed use of its property is permissible under the provisions of the zoning ordinance, in the \u201cD\u201d zone where the property is located.\nThe evidence in this case reveals that the appellant\u2019s property is located in a quiet, older residential section of Little Rock, consisting primarily of large two story homes, some of which have been converted into apartment buildings and some still occupied by the original owners as single family dwellings. The appellent does not contend that the proposed use of its property would convert the property from family dwellings to an \u201c educational institution\u201d as defined in the ordinance, and there is no serious contention that the proposed Halfway House would be an institution of an educational or religious nature. So the question boils down to whether appellant\u2019s proposed use of its property as a Halfway House would constitute an institution of a \u201cphilanthropic nature\u201d as contemplated in the passage, and as intended by the terms, of the ordinance.\nSection 43-22 (4) of the zoning ordinance fixes the jurisdiction of the board of zoning adjustment and vests it with the power to hear requests for variances from the literal provisions of the ordinance, but courts have no such authority under the statutes or under the declaratory judgment procedure. We conclude, therefore, that in the absence of an ordained definition for institutions of \u201creligions or philanthropic nature\u201d, we must .\u25a0examine the ordinance in the light of its purpose, and the appellant\u2019s petition in the light of the use to be made of the property.\nMcQniUian, Municipal Corporations, volume 8, 1965 revised, \u00a7 25,17, states:\n\u201cThe ultimate and general purposes of zoning are those traditionally associated with the police power, to-wit: The public health, safety, morals and general welfare, peace and order, and public comfort and convenience.\u201d\nIn 101 C.J.S., Zoning, \u00a7 16, we find the following:\n\u201cIn order to be valid as a proper exercise of the police power, especially where their application will cause a destruction of property values, zoning laws, ordinances, by-laws, regulations, and restrictions must advance, promote, or tend to be designed to promote the public health, safety, morals, or general welfare or be reasonably necessary for the protection of the public health, safety, comfort, morals, or welfare, or have or bear a real and substantial relation to public health, safety, morals, or general welfare; and it has been held that such enactments must bear the required relation with respect to the particular premises to which they are applied. Citing Kessler v. Smith, 142 N.E. 2d 231, 104 Ohio App. 213, appeal dismissed Smith v. Village of Glenwillow, 146 N.E. 2d 308, 167 Ohio St. 91.\u201d\nThe case of City of Little Rooh v. Sun Building & Developing Co., 199 Ark. 333, 134 S/W. 2d 583, had to do with a zoning ordinance where it was contended that the ordinance amounted to the taking of private property without just compensation, and in that connection, this court said:\n\u201cThe theory is that the owner of such property is sufficiently compensated by sharing in the general benefits resulting from the exercise of the police power. Many cases to that effect are cited in the note appearing at page 905, 12 C.J., in the article on Constitutional Law, subhead Police Power. But these and all other cases appear to be in accord in holding that this power may not be arbitrarily used, and must in all cases bear a definite relation to the health, safety, morals and general welfare of the inhabitants of that part of the city where the property zoned is situated.\u201d (Emphasis supplied.)\nNow, as to the ordinance we are dealing with in the case at bar: \u201cEducational institution\u201d is specifically defined by the longest of the 63 definitions in the ordinance and \u201ceducational institution\u201d is the only institution that is defined. It is noted that the definition specifically refers to school or academy, public or founded or owned or conducted by or under the sponsorship of a religious or charitable organization. The definition also includes \u201ccollege or university, public or founded or conducted by or under the sponsorship of a religious or charitable organization.\u201d Certainly it is reasonable to interpret an \u201cinstitution of an educational nature\u201d, as set out in \u00a7 43-4 \u201cC\u201d (4), supra, to simply mean an \u201ceducational institution\u201d as defined in the ordinance. But the ordinance provides no such aid in defining \u201cinstitutions of a religious or philanthropic nature.\u201d The words \u201creligious\u201d and \u201cphilanthropic\u201d are broad general terms and as was said of the terms \u201cphilanthropic\u201d and \u201celeemosynary\u201d in the 1942 case of Westchester County Soc. for Prevention of Cruelty to Animals, Inc. v. Mengel, et al., Zoning Board of Appeals, 54 N.E. 2d 329, they\n\u201c. . . are not technical words of art or words which have been defined by statute or which have acquired a rigid meaning by judicial construction.\nThey describe a field without established land marks. Often, perhaps ordinarily, these words denote a purpose to promote the welfare of mankind by works of charity. Sometimes they are used in broader sense to denote an unselfish purpose to advance the common good in any form or manner. Such words reflect the context in which they are used and change in color and in scope accordingly.\u201d\nIn Yonkley, Zoning Law and Practice, (A 19-6 \u2014 19-7, third edition, in connection with the interpretation of zoning ordinances, is found the following statements:\n\u201cZoning ordinances should be given a fair and reasonable construction, in the light of their terminology, the objects sought to be attained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance as a whole. A zoning ordinance must be construed reasonably and with a regard for the objects sought to be attained. * * *\nAn ordinance must be read to avoid, if possible, an arbitrary and capricious interpretation. The determination of the uses permitted in a zoning ordinance must be predicated on the wording thereof, and also on the context in which it occurs. In construing zoning ordinances what may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic, and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. \u201d\nAlso in Yonldey, Zoning Law and Practice, \u00a7161, p. 320, first edition, is found the following:\n\u2022 \u201c. . . [I]n determining whether or not the use to which property is being used comes within the classification of use permitted in a zone under the particular facts of any case is a question of plain fact. The use conforms or it doesn\u2019t and each case must rest on its own particular facts.\u201d\nThe objects recited in appellant\u2019s corporate charter, as well as the testimony and other evidence before the chancellor, indicate that a maximum number of twenty men, all of them convicted criminals and parolees, would be assigned two to a room, and would he housed and boarded at the Halfway House. The record reveals that there are other so-called \u201chalfway houses\u201d in Little Rock, but none of them have to do with the rehabilitation of convicted felons.\nSo in the absence of specifically ordained definitions of institutions of a religious or philanthropic nature, we conclude that the chancellor was entitled to consider the overall purpose of zoning ordinances in general in determining whether appellant\u2019s proposed use of its property was permissible under the provisions of the ordinance. We conclude that the chancellor\u2019s findings that appellant\u2019s Halfway House is not an institution of an educational, religious or philanthropic nature, as contemplated by the ordinance, is not against the preponderance of the evidence and that the decree of the chancellor should be affirmed.\nAffirmed.\nHolt, J., not participating.", "type": "majority", "author": "J. Fred Jones, Justice." } ], "attorneys": [ "Burl G. Rotenberry and Gene Worsham for appellant.", "U. A. Gentry and H. B. Stubblefield for appellees." ], "corrections": "", "head_matter": "Arkansas Release Guidance Foundation v. James Hummel, et al\n5-4678\n435 S.W. 2d 774\nOpinion Delivered January 13, 1969\nBurl G. Rotenberry and Gene Worsham for appellant.\nU. A. Gentry and H. B. Stubblefield for appellees." }, "file_name": "0953-01", "first_page_order": 977, "last_page_order": 988 }