City of West Helena v. Davidson

Frank Holt, Justice. Appellees petitioned the appellant’s planning commission to rezone their lot from Residential (R-B) to Neighborhood Commercial (N-C). The commission refused to change the classification, and appellant’s city council approved the commission’s action. The appellees then proceeded in chancery court. This appeal results from the chancellor’s finding that the action of the city council was arbitrary, and from his order directing appellees’ property to be changed to the requested “Neighborhood Commercial Zone.” In its first two points for reversal, appellant asserts that the chancellor erred by substituting his judgment for that of the zoning authorities and that the chancellor’s findings are contrary to the preponderence of the evidence. We do not agree. The facts in the case appear to be undisputed with reference to the nature of the realty surrounding the subject property. This vacant lot is being purchased by the Davidsons, appellees, from appellee Katz with the intention of constructing a drug store thereon. It is located on the north side of Oakland Avenue (U. S. Highway No. 49), which is the main thoroughfare between Helena and West Helena and one of the most heavily traveled roads in the State, accommodating approximately 15,000 vehicles a day. The lot is situated about one block inside the east central corporate boundary of appellant city and the contiguous boundary of the western most jaortion of the City of Helena. The lot constitutes the far eastern parcel of a residential (R-B) district. Immediately adjoining it to the west is a church with a complex of buildings. Next are two vacant lots, then a 50-foot-wide street or avenue which is not open at the highway entrance. Then, continuing to the west on the north or same side of the highway (Oakland Avenue), are found residences in a different classification, Residential (R-A), leading up to an elementary school. Across the street from the church and a small portion of appellees’ property is a residence; then, continuing on further west on this south side of the highway are two vacant lots, the Helena Country Club, and residences in R-A. classification, except for a service station. This appears to accurately describe the type of property which is on both sides of the highway to the west of appellees’ vacant lot. Immediately to the east of appellees’ property on the north side of the highway there is a bowling alley. Adjacent to this commercial business is a high school and junior high school complex of the Consolidated Helena-West Helena School System. Next to the schools it appears that appellant recently rezoned some land to the east for commercial purposes to permit construction of a shopping center. Directly across the highway from appellees’ property is located the Arkansas Power & Light Company’s main office, storage and maintenance building, and east of this property there is a drive-in food and drink establishment. On the eastern line of this drive-in is found the corporate boundary of West Helena and Helena. Further eastward on both sides of the highway, there are various business establishments located on commercially zoned property extending for almost a mile into the City of Helena. Appellee Mr. Davidson, a pharmacist, rents a building in Helena where he owns and operates a drug store about one block east of that city’s corporate line, or approximately two blocks from the vacant lot he seeks to have rezoned in order to construct a drug store building thereon. Appellant’s witnesses, which included members of the city council and of the planning commission and four property owners, testified that the rezoning of appellees’ property from Residential (R-B) to Neighborhood Commercial (N-C) would disturb the planning program and not be in the best interest of the City; that rezoning would depreciate or adversely affect the value of residential property to the west which is in the classification Residential (R-A); and that the church should not be considered a buffer zone between appellees’ property and the area to the west. There was evidence that in the past several efforts to rezone this property were unsuccessful. Evidence was also adduced that the proposed rezoning would increase already existing traffic problems which, as one witness testified, was the basic reason the people in the area were objecting. It was admitted by appellant that the character of appellees’ property is "low residential” which is described as suitable for multi-dwelling houses, such as duplexes. One of appellant’s witnesses testified that he would not build a home there. It appears that a multiple dwelling sould be restricted to a height of 35 feet, whereas a building zoned for Neighborhood Commercial (N-C) use could be no more than 26 feet in height. As previously indicated, it is admitted that the whole area east of appellees’ property on both sides of Highway No. 49 consists of commercial establishments for a considerable distance. The church, which is adjacent to appellees’ property, found it necessary to purchase a part of appellees’ property in order to provide a better driveway and access to the highway to accommodate its 350 members. The church now has an Education Building consisting of thirteen classrooms, three offices, two restrooms, an equipment room and a kitchen. An expert city planner, associated with the University of Arkansas, who assisted appellant’s planning commission and whose contract was completed in 1962, recommended that appellees’ property be zoned Residential (R-B) and the property west of the church be classified as Residential (R-A). He testified that there appears to have been a number of changes since 1962 and that from his observation, the tract of property adjacent to the subject property appears to be commercial in nature. The church has been built since the completion of his contract in 1962 and the nearby school has grown. He stated that he did not consider the church as a buffer zone and that a residential classification, duplex type, is still appropriate for appellees’ property and consistent with city planning. He finally stated that he did not have an opinion whether the subject property would be commercial in nature. He observed that Neighborhood Commercial is a very limited classification and is restricted to one-story buildings. Among appellees’ witnesses was a local licensed realtor and real estate broker who lives in West Helena and has had many years experience in his profession. He was for several years a member and . official of the City’s Planning Commission, beginning in the early 1960’s, and is familiar with appellees’ property and the city’s planning and zoning ordinances. It was his opinion that appellees’ property was not suitable for residential uses, nor could ever be used for that purpose; that the highest and most compatible use of the property was for Neighborhood Commercial purposes for a retail store; that this type of use would not adversely affect or depreciate the value of property to the west; and that the residence diagonally across the highway from appellees’ property is “sitting back” about 250—BOO feet from the highway and is within 50—75 feet of the Arkansas Power & Light Company’s property. According to him, it would not be spot zoning to permit the requested neighborhood commercial use. He also testified that the church, in addition to being a buffer zone, could be considered merely as “an extension of a commercial zone.” Another well-known realtor and an expert who is experienced in zoning and planning programs was of the view that the property was definitely commercial in character inasmuch as it is located in and adjacent to an established commercial business area; that good planning required the use of this property for neighborhood commercial purposes; and that such usage would not depreciate the value of any residential property in the area. In his view, the proposed use of the property as a drug store would not increase the traffic hazard on this heavily traveled highway (15,000 vehicles per day). According to him, a Neighborhood Commercial (N-C) classification or a commercial use of a low character would conform to. the highest compatible use of the subject property and would fit into the city’s planning program. Also, the church is a perfect buffer between the residential district (R-A) and the subject property. Because of the proximity of the subject peoperty to the boundary line of Helena-West Helena, it was his opinion that good planning required zoning by area rather than by political boundaries and that the use of the property in both cities in proximity to appellees’ property should be considered for zoning purposes. In City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883 (1925) we said: “*■** any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.” We think this language is applicable to the case at bar in view of the fact that appellees’ property is practically surrounded by established commercial activities which border on both sides of a major highway having a traffic count of approximately 15,000 vehicles per day. Furthermore, appellees have specified the intended use of the property, cf. City of Little Rock v. Parker, et al, 241 Ark. 381, 407 S. W. 2d 921 (1966). As stated previously, the facts are not disputed as to the present uses of the properties in the area. The dispute presented to the chancellor largely pivoted around the opinions of the witnesses representing opposing views as to the highest compatible use of the subject property. In such a situation we aptly said in City of Helena v. Barrow, 241 Ark. 654, 408 S. W. 2d 867 (1966): “In a case of this kind the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence.” In the case at bar, the chancellor heard the witnesses and evaluated their conflicting testimony and other evidence; we are unwilling to say that his findings are against the preponderance of the evidence. Nor do we find any merit in appellant’s contention that the chancellor erred in considering evidence of commercial uses of nearby property within the corporate limits of the adjacent City of Helena. Appellees’ property is within one block of this bordering city, and certainly it must be said that the commercial use of other property situated within one block of their property would have an effect upon its highest compatible usage. In fact, appellant’s expert, who by contract assisted in the planning program, testified that the planning project as to land use was conducted in conjunction with the planning commissions of both cities and that there is a very close correlation between land use planning and zoning ordinances. The decree is affirmed. Harris, C. J., and Fogleman, J., dissent.