{ "id": 12024155, "name": "CITY OF RUSSELLVILLE v. BANNER REAL ESTATE", "name_abbreviation": "City of Russellville v. Banner Real Estate", "decision_date": "1996-11-25", "docket_number": "96-142", "first_page": "673", "last_page": "677", "citations": [ { "type": "official", "cite": "326 Ark. 673" }, { "type": "parallel", "cite": "933 S.W.2d 803" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "267 Ark. 311", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719805 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0311-01" ] }, { "cite": "268 Ark. 364", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715400 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0364-01" ] }, { "cite": "Ark. Code Ann. \u00a7 14-56-423", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 14-56-422", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "278 Ark. 570", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748051 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0570-01" ] } ], "analysis": { "cardinality": 430, "char_count": 7417, "ocr_confidence": 0.818, "pagerank": { "raw": 5.881958177012177e-08, "percentile": 0.36849658030255816 }, "sha256": "2e04cb6cb573d3fe5e0a08eda78acd071ee3677db8d7ffed2fee4b30396537a1", "simhash": "1:d9a4924239674ac3", "word_count": 1230 }, "last_updated": "2023-07-14T22:12:03.555215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CITY OF RUSSELLVILLE v. BANNER REAL ESTATE" ], "opinions": [ { "text": "DAVID Newbern, Justice.\nThis is a zoning case. The issue is whether a city council may, upon oral motion, adopt a rezoning ordinance which differs from one proposed by the city\u2019s planning commission. We reverse the Chancellor\u2019s decision awarding a partial summary judgment, the effect of which was to preclude the city council from doing so.\nThe City of Russellville petitioned the Russellville Planning Commission to rezone certain property facing Twelfth Street in Russellville from category C-4, quiet commercial, to category R-l, single-family dwellings. The tract under consideration included property owned by the appellee, Banner Real Estate, a partnership. The petition proceeded before the Russellville Planning Commission where public hearings were held. The Commission\u2019s recommendation was that the tract be rezoned, with portions of it to become R-l and other portions R-2. The R-2 category permits construction of apartments. The Banner property is located in the part of the tract recommended by the Commission for R-2 rezoning.\nThe resulting Ordinance 1474, as adopted by the Council, differs from the Commission proposal. While the Council did as the Commission had recommended by rezoning the land which had previously been zoned C-4 to R-l and R-2, the line between the two resulting R-category portions of the property was drawn differently by the Council so as to make part of Banner\u2019s property P.-2 and part of it R-l, rather than all of the Banner property being rezoned R-2 as recommended by the Commission. The change came about as the result of an oral motion by a councilman after the third reading of ordinance which, as proposed, accorded with the Commission\u2019s recommendation.\nBanner brought suit in Pope Chancery Court to have Ordinance 1474 declared void. It contended the Ordinance was invalid because the precise manner of drawing the R-l \u2014 R-2 line, as a result of the orally proposed modification, had not been shown on any map or in writing prior to its adoption. It was contended that Banner\u2019s right to due process of law was violated as members of the public had not been allowed to address the ordinance as it appeared in the form ultimately adopted.\nBanner moved for a partial summary judgment. The motion was granted. There apparently were other claims in this litigation which were not adjudicated. The Chancellor entered a proper order certifying the partial summary judgment for appeal in accordance with Ark. R. Civ. P. 54(b).\nIn Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983), we held invalid an attempt by a city council to enact a rezoning ordinance. A city council had rezoned property without the request having been considered by the city\u2019s planning commission. We noted that the state law would have permitted the city council to do as it did, but that, because there had been no compliance with the procedure specified by the city\u2019s zoning ordinance requiring submission of the proposed rezoning to the planning commission, the ordinance was invalid. At the outset of our opinion, we pointed out that a city has no authority to legislate other than that granted by the state. It is thus clear that zoning authority must be exercised in accordance with both state and local law.\nThe state law in this instance is contained in Ark. Code Ann., Title 14, Chapter 56. The procedures for adopting a comprehensive zoning plan in a municipality are found in Ark. Code Ann. \u00a7 14-56-422 (1987). Changes to the plan may be made in accordance with Ark. Code Ann. \u00a7 14-56-423 (1987) which provides:\nAfter adoption of plans, ordinances, and regulations and proper filing in the offices of city clerk and county recorder, no alteration, amendment, extension, abridgement, or discontinuance of the plans, ordinances, or regulations may be made except in conformance with the procedure prescribed in 14-56-422, or by a majority vote of the city council.\nThe Chancellor held that the procedure followed by the Council was illegal because \u00a7 14-56-422 was not followed. As we read the statutes, \u00a7 14-56-423 is controlling, and it permits a change in the zoning plan, or rezoning, by \u201cmajority vote of the city council\u201d without following the procedure requiring further planning commission review as prescribed in \u00a7 14-56-422 and as found necessary by the Chancellor.\nOrdinance 1459 of the City of Russellville provides the procedure to be followed when the City, as in this case, is the petitioner seeking rezoning of a citizen\u2019s property. It requires the City to prepare a petition and a plat map \u201cshowing the location of the affected property.\u201d It provides further for sending notice to the owner, posting a \u201crezoning sign, and holding public hearings before the Commission. Finally, it states in subsection 5, \u201cAfter a public hearing is held, and the petition is reviewed by the Planning Commission, the Council may amend the zoning district boundary by passage of an ordinance by majority vote.\u201d\nWhile the ordinance thus requires a map \u201cshowing the location of the affected property,\u201d there is no requirement that there be precise geographic zoning categories shown on the map. Although it is obvious that a petition must be submitted in writing, we see no requirement that the ultimate rezoning ordinance adopted by the Council be made available prior to its adoption so long as the property in question and the proposed rezoning have been the subjects of notice to the property owners and the required public hearings.\nSummary judgment may be granted when there are no remaining genuine issues of fact and the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56(c). The Chancellor must have assumed there were no material facts at issue, and we have no quarrel with that assumption. Rather, we cannot say that Banner was entitled to judgment as a matter of law in view of our conclusion that the Chancellor misapplied \u00a7 14-56-422 rather than applying \u00a7 14-56-423 to the situation before him.\nFinally, we note Banner\u2019s general due-process-of-law argument, which formed a part of its pleading before the Chancellor but was not mentioned in the Chancellor\u2019s ruling. While we may affirm on any proper legal basis, we are reluctant to consider doing so on the basis of the due process argument. Banner has given us only a quotation of general language that, \u201cIt is fundamental that a person cannot be deprived of life, liberty or property without due process of law,\u201d citing the Fifth and Fourteenth Amendments and Ark. Const, art.2, \u00a7 21, along with Godwin v. Godwin, 268 Ark. 364, 596 S.W.2d 695 (1980), and Franklin v. State, 267 Ark. 311, 590 S.W.2d 28 (1979). Neither of the cited cases is particularly relevant. Without something other than the general authority cited and without the issue having been made the subject of the hearing before the Chancellor and of a ruling by him, we choose not to conduct further research on the subject to see if we might affirm on the basis that Banner was denied due process of law. Our decision has only to do with the point more folly argued, and decided by the Chancellor, with respect to the City Council\u2019s statutory authority.\nReversed and remanded.", "type": "majority", "author": "DAVID Newbern, Justice." } ], "attorneys": [ "Donald Bourne and Dunham & Ramey, PA., by: James Dunham, for appellant.", "John Harris, for appellee." ], "corrections": "", "head_matter": "CITY OF RUSSELLVILLE v. BANNER REAL ESTATE\n96-142\n933 S.W.2d 803\nSupreme Court of Arkansas\nOpinion delivered November 25, 1996\nDonald Bourne and Dunham & Ramey, PA., by: James Dunham, for appellant.\nJohn Harris, for appellee." }, "file_name": "0673-01", "first_page_order": 675, "last_page_order": 679 }