Wenderoth v. Freeze

Carelton Harris, Chief Justice. This is a zoning case. Collier Wenderoth and Nancy Wenderoth, appellants herein, own a home in Fort Smith which abuts a tract that the City of Fort Smith, on the application of Grand Investments, Inc., one of the appellees herein, rezoned from Open 1 (0-1) to Residential 3 (R-3). The tract of land rezoned is approximately 8.3 acres, and lies west and abutting to Interstate 540, between the streets Grand Avenue and Kinkaid Avenue. The purpose of Grand Investments in seeking the rezoning was to sell the tract of land owned by them to Henderson Corporation, Henderson proposing to build an apartment complex consisting of approximately 225 units. The petition for rezoning was filed with the Planning Commission of the City of Fort Smith, heard by the commission, and approved on April 8, 1969. Appellants were not present at that time, and this fact will be hereafter discussed. On April 21, 1969, the Board of Directors of the City of Fort Smith considered the petition for the requested rezoning, and Collier Wenderoth appeared before the board with his attorney in opposition thereto. However, the board approved the rezoning, and passed an ordinance to that effect. Thereafter, appellants instituted suit in the Sebastian County Chancery Court, seeking an injunction to prohibit the proposed zoning change. After the taking of evidence, the court found that the only abutting property owners complaining as to the rezoning were the petitioners; that they had notice of the hearings and were afforded an opportunity to be heard; that it had not been shown by appellants that the rezoning was unreasonable and arbitrary. The complaint was dismissed for want of equity, and from the decree so entered, appellants bring this appeal. For reversal, two points are asserted, first, "The lower court erred in holding that the action of the Planning Commission and Board of Directors was not arbitrary.” It is also contended that “The lower court erred in finding that the notice of public hearing was given in accordance with the ordinances of the City of Fort Smith, Arkansas. We have held that the Chancellor should sustain the city’s ruling unless he should find that it acted arbitrarily. Olsen v. City of Little Rock, 241 Ark. 155, 406 S. W. 2d 706. However, we agree with appellants that the action of the City Planning Commission, under the circumstances hereafter enumerated, was arbitrary, and resulted in a denial of appellants’ rights. The record reflects that the Wenderoths received notice by post card, dated March 18, that a hearing on the rezoning petition filed by Grand Investments, Inc., would be held by the Planning Commission on Monday, April 15, 1969. No objection to this date was raised by the Wenderoths, and as far as the record reflects, they apparently planned to be present to voice their opposition to the petition at that time. Another notice, postmarked March 28, was received by appellants, advising that the hearing would be held on April 8, 1969. According to the testimony, Mr. Wenderoth had previously arranged for dental surgery for his wife at Tulsa, Oklahoma, on that date, a gingivectomy operation having been arranged with a Doctor Hall of that city. Mr. Wenderoth’s attorney was Thomas Harper of Fort Smith, and Mr. Harper was also committed for another meeting at that time. A partner of Harper, who, according to the evidence, was not familiar at that time with any of the facts upon which the Wenderoths based their protest to the rezoning, went to the Planning Commission meeting on April 8 to request a continuance of the hearing, the associate giving the reasons why the Wenderoths could not be present. Counsel for appellees objected to a continuance, and the chairman stated, “I think we will go ahead and hear the case and after Mr. Ledbetter finishes, I’ll ask if there is any opposition. At that time you can get on the record what you want.” The request for rezoning was then presented and at the conclusion of the presentation, the chairman inquired if anybody desired to speak in opposition. Harper’s associate counsel then stated: “* * * I once again renew my request for continuance to permit Mr. Harper, Mr. Wenderoth and Mrs. Wenderoth if he should desire to present your objection to the granting of this zone change. I am not familiar, I have not talked to Mr. Wenderoth about this, and we let the opposition know, the opponents of this last weekend, what the complications were. I think in order to have the full and complete hearing these people should be heard and those matters taken up only after both sides have been presented.” After hearing some other cases, the chairman then asked if the commission desired to postpone or defer action for a month in order to give Mr. Wenderoth and Mr. Harper, his attorney, an opportunity to be heard. An unidentified member of the commission moved that this be done, and another member, identified as Dr. Shermer, stated: “Well, I just want to say they knew this meeting was to be held today and they had ample time to prepare for it. I’m not one way or the other, but I don’t think going to the doctor or going to a dentist is enough reason to excuse a man from being present in a meeting when he’s known about it for a month.” When another unidentified member mentioned that Harper was in another meeting being held simultaneously, Shermer replied: “Well, I knew, but I think he could have sent his representative because this meeting is just as important as that.” A vote was taken on whether to take action on the petition immediately, and six voted, “Aye;” three, against. The petition for the rezoning was approved, and the recommendation made to the Board of Directors of the City of Fort Smith that same be granted. On April 21, the Board of Directors held its regular meeting, and the matter was presented for its approval. At that time, Mr. Wenderoth made a statement opposing the rezoning. A Mr. Mooney stated he had not been contacted, and that he would like to ascertain how rezoning would affect his property. He said that he bought his property under the assumption that “all of that would remain residential. Now, I am just making my point. I’m involved, all my savings are there and I don’t believe that it is being done in a democratic way.” After a motion was made to approve the rezoning ordinance, and the rules were suspended for a second and third reading, the ordinance was approved by a vote of five to one. Appellees point out that appellants’ counsel was given an opportunity to present objections to the proposed zoning at the meeting of the Planning Commission; that they were given a hearing at the meeting of the Board of Directors, and that again, in Chancery Court, appellants had an opportunity to present all of their evidence at a de novo trial. It is apparently the view of appellees that, since they (appellants) had the opportunity to present their case to the Board of Directors, and to tíre Chancery Court, the failure to have that opportunity before the City Planning Commission is really immaterial. We cannot agree with this argument, and if it is sound, then there is no reason for a hearing to be held at all before the City Planning Commission. If a hearing is of no value, it can only be characterized as a waste of time for members of the commission, the petitioners, and the opponents. The general purpose of a Planning Commission is set out in Ark. Stat. Ann. § 19-2827 (Repl. 1968) as follows: “The general purpose of the planning commission is to prepare or have prepared a plan or plans of the municipality, to receive and make recommendations on public and private proposals for development, to prepare and administer planning regulations, to prepare and transmit to the legislative body recommended ordinances implementing plans, and to advise and counsel the city government and other public bodies. The planning commission shall have the duty and function of promoting public interest in and understanding of the long-term coordinated municipal planning.”1 The importance of a hearing before that body is shown by the fact that Fort Smith has an ordinance, No. 2639, requiring notice of any hearing of a change or authorization in zoning to be published in a newspaper of general circulation in the city at least one time 15 days prior to the hearing. Mr. Bob McCann, Secretary of the Planning Commission, testified that, in addition to the legal description of the property sought to be rezoned, the commission also requires that the street address be given, the commission realizing that many people would not be able to identify property simply by the legal description. Certainly, hearings affecting vital property rights are important, particularly so, when they involve an individual’s home, the place where he contemplates spending the rest of his life. The Chancellor commented on the request for continuance as follows: “Further, it is indicated that there was a request for a continuance before the Planning Commission, but that this body which has authority to promulgate its own rules and regulations for conducting its affairs (Arkansas Statutes Annotated, Title 19-2830) did, within its discretion, deny the request for continuance. Had the matter stopped here, this may have been considered an indiscretion,2 but this body is only an advisory body and merely, after denying the request for a continuance and after having heard the evidence presented before it in connection with the rezoning application, did approve and recommend granting the change to the Board of Directors of the City of Fort Smith, which is its primary function.” We have already pointed out that we attach much more importance to this primary hearing than is indicated by the appellees, and the trial court. It certainly appears that the Board of Directors attached importance' to the recommendation of the commission, as well they might, and any attorney is aware of the advantage of prevailing in the first engagement. It is no answer to say that appellants could not have been prejudiced because they received a de novo hearing before the Chancery Court. Actually, such a hearing is not de novo, for the court is only permitted to reverse the city’s legislative body if it finds that that body acted arbitrarily. We, in turn, only reverse if the findings of the Chancery Court are against the preponderance of the evidence. Olsen v. City of Little Rock, supra. Of course, it has been held that this court hears all Chancery cases de novo. Harris v. Harris, 236 Ark. 676, 370 S. W. 2d 121. But despite that fact, we have held many times that we will not reverse a Chancellor unless his findings are clearly against the preponderance of the evidence, and this is actually the rule that is followed. Hampton v. Hampton, 245 Ark. 579, 433 S. W. 2d 149. We have endeavored, in the remarks of the last several paragraphs, to show that a hearing before the Planning Commission is much more than perfunctory, i. e., it is not a mere formality. The next question is: “Did the Planning Commission act arbitrarily in refusing to grant a continuance in order that the Wenderoths might be heard” We think the answer is a solid “yes,” and we disagree with Dr. Shermer when he said, “I don’t think going to the doctor or going to a dentist is enough reason to excuse a man from being present at a meeting when he’s known about it for a month.” In the first place, the Wenderoth’s had not known about this hearing for a month. Mr. Wenderoth testified that he received the second notice (advising of the new date) on March 31, or nine days before the hearing. The record reflects that the notice was not sent out until March 28, so he could not have known about it for more than eleven days. This is some three weeks less than a month. Mainly, however, Wenderoth had already been advised that the hearing was set a week later (April 15), and he cannot be blamed for having made arrangements for his wife to receive dental surgery on the 8th — nor do we think it reasonable to require Wenderoth’s regular attorney, who had another meeting, to cancel that meeting for the purpose of appearing before the commission. For that matter, an attorney can hardly capably or efficiently handle any matter in the absence of his client. There is not one line of evidence that Wenderoth prevaricated in stating the reason for his inability to be present, and likewise, there is no reason given for the change of dates for the hearing, other than it appears a mistake was made when the card was sent out advising that the hearing would be held on the 15th. Still, Wenderoth should not be held responsible for someone’s mistake in sending the notice. We think the commission acted arbitrarily in refusing to continue the hearing. As to the second point, we agree that proper notice in conformity with the city requirements was not given, Mr. McCann admitting that the description used in the notice could include several square miles, but under the circumstances herein, this is not grounds for reversal. It is true that several people (not abutting property owners) testified in Chancery Court against the rezoning, stating that they did not know about the hearing before the Planning Commission, and it is entirely probable that, with such knowledge, at least some would have been present for the purpose of being heard. However, these persons are not parties to this litigation, and accordingly are not asking for any relief. Only the Wenderoths are appellants, and they were aware that a hearing would be held. In accordance with what has been said, we find that the Chancellor’s holding that the city did not act arbitrarily is against the preponderance of the evidence, and the decree is accordingly reversed. It is so ordered. Fogleman and Byrd, JJ., dissent. Footnotes [1] That the commission performs important functions is recognized by the fact that in certain instances, the commission’s disapproval of a submitted proposal can only be overruled by a recorded vote of 2/3 of the full membership of the municipal legislative body that created the commission. See Sub-section f of Section 19-2827. [2] Emphasis supplied.