SUMMIT MALL CO. LLC v. Lemond

bite at another while yet Shop apple, simultaneously requiring owner, true theft, has been who victimized Jameson, already before more he through obtain return of jump hoops may finally his I dissent. property. Accordingly,

Hannah, in this dissent. J., joins COMPANY, LLC; Rock, SUMMIT Arkansas, MALL of Little and Its Board Directors: Mayor Dailey; Pugh; Jim Johnnie Hinton; Willie Keck; Stewart; Michael Larry Lichty; Genevieve Graves; Adcock; Dean Barbara Kumpuris; Brenda Wyrick; Joan LEMOND; and Brad Palmer; Cazort v. Russell Carolyn Vuletich; Brannon; Daniels; Essie Barry Hattie F. William Hyatt; Hall Wendy Turner; Erma Ramsey; Ramsey; Ronald Bayley; Butler; Randall Merritt; Jones; Mildred Hughes; James Joe Brands; Alfred Cook, Deloris Cook; Burke; Martha Alice Jr.; Roberts; Roberts; Brown; Karen Kenneth Olene Reynolds Larry 02-1337 132 S.W.3d 725 Court of Arkansas

Supreme 4, 2003 delivered December Opinion III, LLP, Anderson, Williams & Anderson S. Askew by: Philip Jess Priebe, M. for Summit Mall Com- S. Sarah appellant Kelly Terry, LLC. pany, Mann, III, M. C.

Thomas and William Carpenter appellants of Little Rock et al. City Coulter,

Wilson, Corum & D. Corum and Engstrom, by: Gary Coulter; Gitelman, Nate and Morton for appellees. Mall, Robert L. Summit Appellants, Brown, Justice.

LLC, the of Little Rock and the City (the City), Mayor and Board of Directors of Little Rock from the (the Board), appeal Pulaski Circuit Court’s final decree and County permanent injunc- tion to Summit Mall City enjoining issuing building permit other action with Ordinance No. taking any respect 18,456.1 The Russell Lemond and the other landowners appellees, five in some to the (landowners), Summit Mall proximity proposed site. filed suit and were successfulin They injunction obtaining block mall’s construction.

Summit Mall raises five that the circuit points (1) appeal: court lacked because Ordinance No. subject-matter jurisdiction, 18,456 should have been under Ark. Code Ann. challenged law, 14-56-425 that as a 1998); (2) matter of the land- (Repl. § below; owners did not have file standing that complaint (3) void; circuit court erred in holding (4) that the circuit court erred its defenses of laches and rejecting limitations; statute of that the circuit (5) court erred ruling that Ordinance No. was to referendum under Amendment 7 of the Arkansas Constitution. The City jointly asserts each with the that the point appeal exception believes landowners had their standing We bring complaint. with Summit Mall and the that agree the circuit court erred in that the landowners’ lawsuit barred concluding laches. we reverse the final decree and Accordingly, injunction remand the case. The facts are for the most pertinent undisputed On part.

December City’s passed 15,385, which unit and estab- approved planned development lished commercial district (PCD) for the planned now time, referred to as the Summit Mall At submission property. of the final or a for extension of time had development plan request to occur within one of the On year October preliminary approval. 3, 1988, an for the of the Summit Mall attorney then-developer However, underlying County Chancery suit was filed in Pulaski during Court. course, effect, its Amendment 80 of ArkansasConstitution merged went into which Hence, equity. courts of law and we refer the will to trial court as circuit the court. Mastriana, of the David City’s wrote Ronald property, Jones time to file extension of and an Planning Department the requested aor a extension he asked for one-year final Whether plan. that extension from what starting extension and point three-year 1, in this On November case. to are matters begin dispute 15,571, 1988, which amended No. the Board Ordinance passed which PCD from one three years the time year period a to submit Mall had the Summit including developer, developers, do extension of time to so. or a for final plan request 1991, McGetrick, 8, on behalf Patrick writing On January Mall submitted of the Summit property, the then-developer Lawson, of the Director City’s Department letter Jim extension three-year requested Development, Planning in which to submit 12, 1991, that a final On February plan. A Commission. the City’s Planning extension was by approved Mr. on McGetrick second extension was requested by three-year 4, 1994, 25, 1993, extension was also and on that January October 22, Commission. On February the City’s Planning approved 1995, 97 acres in west Mall Summit purchased approximately the for the mall from Little Rock prior developer. proposed denied Mall an- Commission Summit The City Planning 18, March to file its final but on other extension of time plan, 17,423, which Ordinance No. per- passed Mall in which file mitted a extension to Summit three-year later, ain final for the mall. Almost two-and-one-half years plan 15, 1999, final Summit Mall submitted the letter dated November “a an earlier and stated that it was revision for review plan After several deferrals in considering similar project.” approved PCD, voted Mall’s Commission Planning Summit City’s on 2000. Mall’s PCD revision Summit September approve of the ordinance After three readings granting proposed conditions, revision, new including special public requested the Board comment both for and against request, passed 18,456 2001. April west Little landowners from On May appellee and challenged filed their Rock against complaint 18,456. stated Board’s of Ordinance No. Their complaint approval for the site development approved prelimi- plan proposed 15,385 975,000 335,000 “included narily mall, foot three office buildings totaling square shopping feet, feet, a and two restaurant hotel with square square feet.” The ordinance reclassified totaling square parcels acres of to Interstate zoning ninety-seven property-adjacent and Shackleford Road in west Little Rock from office/residential to a PCD. The landowners an sought injunction the prohibiting City issuing any building permits taking other to action the ordinance. further any implement They sought a declaration that the Board’s 2001 decision April passing to establish a revised commercial planned unreasonable, district was and an arbitrary, abuse of capricious, discretion, and that the Board’s of Summit Mall consti- approval tuted which was not in the “spot zoning” with conformity City’s ordinances, law, Arkansas case or federal applicable and state constitutional guarantees. answered,

The denied the landowners’ alle- generally and the affirmative gations, defenses failure to state pled facts which relief could be under Ark. R. Civ. P. upon granted 12(b)(6), laches, waiver, and The further asserted estoppel. that the landowners were and, under required 14-56-425 proceed § thus, the court was chancery without subject-matter jurisdiction. The an added that ordinance like one at issue is not a for referendum under Amendment proper 7 of the Arkan- sas Constitution. On Summit Mall moved intervene. The June

circuit court Summit Mall’s granted intervention in the case. That same Summit Mall moved day, to dismiss for lack of complaint subject-matter on the basis that jurisdiction court chancery claims, circuit (now court) had no over jurisdiction for which there is an at law under 14-56-425. adequate remedy Summit Mall also § answered the and cross-claimed complaint It against too City. asserted the defenses of lack of laches, subject-matter jurisdiction, waiver, and statute of estoppel, limitations. Summit Mall further contended that to its of the 97-acre prior tract in purchase to it that City represented was zoned as a property PCD and that the intended of the development property permissible under this Summit Mall zoning. asserted that it had relied on these representations circuit court purchasing that the property prayed and enter declaratory that its judgment declaring right as a develop regional mall was an interest shopping the due and protected by clauses of the process United takings States and Arkansas Constitutions. landowners filed counterclaim against next

The City regarding referendum petitions that sufficient acknowledged had been filed. City requested was administrative issue declaratory judgment the Arkansas under Amendment a referendum not subject asked for a declara- answered The landowners Constitution. were valid. referendum on the petitions the tion that signatures a the to hold court order City that the circuit further prayed They election. referendum a 29, 2001, issued letter the circuit court opin-

On August order, it which denied Summit ion, of an in by entry followed of jurisdiction. to dismiss for lack subject-matter motion Mall’s based on the for next moved summary judgment Summit Mall also moved for sum- Mall lack of Summit standing. landowners’ a claims and filed the merits of the landowners’ on judgment mary the referendum motion on question. separate summary-judgment for later cross-motioned summary judgment. The landowners 12, 2002, an order the circuit court entered On February to dismiss Summit Mall’s cross- which motion City’s granted it; of the landowners’ motions for several claim against granted without denied those claims prejudice; non-suit and dismissed issues of stand- motions on the Summit Mall’s summary-judgment merits, referendum and denied the and the question; ing, on the merits landowners’ cross-motion summary judgment and the referendum. on trial, a of facts. This to Prior agreed stipulation parties 5, 2002, the circuit trial. On

was followed by three-day June which read in court issued letter opinion, part: raised of laches City equitable arguments The and Summit have Neither laches nor estoppel and Plaintiffs. estoppel against this of time would make the invalid in case.No amount applicable 15,385 of Ordinance No. expiration ordinances since passed have relied on actions or any valid. Neither the nor Summit City have of the Plaintiffs.The and Summit City changed inactions relianceon action or inaction of their to their detriment in positions City the Plaintiffs. Plaintiffs have not sat silent while the and this objections acted. Plaintiffshave voiced to mallproject Summit original to amend the attempted ordinance opposed can show no harm or detriment Summit Mall Ordinance. Summit these Plaintiffssaid or did. AHcitizens any as a result of anything residents of of Little Rock have an City expectation right that will follow and enforce its code and City properly ordinances. because the failed do it to what should Just have done is not a for this court to basis reward the City’s improper conduct. It would be unfair to these inherently either of apply defenses in this equitable case.

The action of the Litde Rock Directors enacting Ordinance No. was not April in conformity with ordinances. City’sprior The Litde Rock ishereby [the] permanently enjoined and restrained from issuing any building permit Intervenors other action taking any pursuant regarding question. The final issue to be addressed this court is now moot light I, the court’s on Count ruling but court feels compelled address it anyway. final is whether the question modification and amendment of a ordinance previously approved to create the Summit Mall PCD anis administrative legislative action. If it is legislative, action is to the subject referendum of provisions Amendment 7 of the Arkansas If the Constitution. action is admin- nature, istrative in it not subject 7. Amendment This court has 18,456 ruled that the previously of Ordinance No. passage on April 3, 2001, awas legislative action therefore to the of provisions Amendment 7. That is still the opinion of this court

today. This Ordinance No. not was a minor revision of Ordinance, Original Summit Mall but a major, wholesale revision of . . original . The evidence in this plan. case reflects that the actions City’s nature, were more than merely administrative in they were clearly nature. legislative 9, 2002, On the circuit court July issued a second letter opinion on its reason for expanding issuing ruled on injunction Summit Mall’s statute-of-limitations argument:

The court has ruled that Ordinance No. previously expired 1, 1990, on December due to no extension timely request being made Mr. developer. McGetrick’s for extension request 8, 1991, January timely. was not All ordinances subsequent extensions, as Ordinance No. as well time additional granting make the subsequent of time will invalid. No amount are 18.456 valid. enacted by ordinances No. lawsuit challenging filed a timely The Plaintiffs 15,385. In the to amend Ordinance No. which purported 18.456 15,385, No. the City of Ordinance the expiration yearsfollowing time extensionsto Summit ordinancesby granting violatedits own defense so.The statute of limitations had do authority when it no lawsuit. not to this Intervenors is applicable raised decree and entered its final the circuit court On July 18,456 and No. in which it set aside Ordinance injunction permanent to Summit Mall. from issuing building permit enjoined city I. Subject-MatterJurisdiction court’s decision in first that under this Summit Mall argues Sutton, 5 S.W.3d 439 Dev. v. Camden Corp. Cmty. is an administrative council’s decision (1999), city 18,456, Summit Mall further claims that Ordinance action. the rationale we was an administrative action under employed action, and, thus, Camden, should have been -legislative out 14-56-425 for under the set challeng- challenged process § administrative even after the acts. Mall contends that Summit ing Constitution, which Amendment 80 the Arkansas adoption of law and the landowners’ courts complaint merged equity, barred, it filed in the circuit court within because was not thirty the trial action. Summit Mall concludes that days challenged have dismissed .the for lack subject- court should complaint matter jurisdiction. Camden, Mall that in we held with Summit agrees be as actions decisions are to reviewed administrative as a mandates an to circuit court

and that 14-56-425 appeal § Thus, the an at matter of law. to remedy according City, adequate existed, had no law and a court of subject-matter jurisdic- equity that tion in the instant case. The further contends because City are and other matters to be obtained before final plan there permits The landowners the landowners’ was approval, appeal premature. this held that is court has rezoning legislative respond long chal- action and that Summit Mall’s and the City’s jurisdictional Camden. is based a flawed reading lenge upon Camden, We with the landowners. In had the agree appellant of its from the Camden sought Com- Planning mission when a was in effect. comprehensive zoning already plan The Commission recommended the Planning appellant’s proposal Board, to Camden’s but the Board declined to the City approve The to have the rezoning. sought proposed appellant subsequently matter certified and on the ballot for a vote of the at placed people the November 1998 election. The who were general appellees, members of the to the community opposed proposed rezoning, the remove initiative from the sought ballot. The circuit court ruled that issues whether to rezone are administrative concerning decisions not to the initiative On this subject court process. appeal, examined the whether action taken Commission by Planning actions, and City Board were or administrative legislative since an initiative action be used to may only address actions legislative when a was zoning effect. We held: comprehensive plan already . . . we have determined that Specifically, this casedo factsof

reflect the occurrence of action any legislative Board. by City First, Commission, we note that the which receivesits power the City Board and functions as an solely administrative body without power legislation,was within pass acting its admin- istrativeauthority when it recommended the rezoning proposal Next, the City Board. we note that the Board’s City decisionto not the Commission’sadministrative accept was only proposal rejec- tion of administrative did proposed action and not constitute any action or legislative administrativeaction Board. . . . City 339 Ark. at 5 S.W.3d at Moreover, we (emphasis added). observed that the amendment of such a as such as plan place, zoning sought by would appellant, require city comply with certain statutory See Ark. requirements. Code Ann. 14-56- §§ —423 This 1998). court affirmed the (Repl. circuit court’s that because neither the holding Commission nor Planning Board took action with to the legislative respect existing comprehen- sive the decision of the Board not to rezone plan, was not to an initiated under Amendment 7. petition Camden case clearly from the facts of distinguishable Camden, the instant case. In no action was taken Board. ordinance, Because the Board failed to it any pass obviously did not act As this court said in legislatively. the Camden opinion, of the a action Planning rejected proposed Board merely events that took said for the same cannot be Commission. us. the case before in place 2001,

Here, by enacting of the action Planning the recommended only approved 15,385 to No. modify Ordinance and amended Commission new, and added PCD, special rezoned the subject but it the ordi the rezoning. By enacting to accommodate conditions action, del is a nance, which power the Board took legislative Ann. under Ark. Code to it General by Assembly egated and second class of the first 1998) (“Cities 14-56-402 (Repl. § and enforce towns shall have power adopt incorporated coordinated, and harmonious adjusted, development for the plans See also Ark. Code Ann. and its environs.”). of the municipality 1998) filing 14-56-416(a)(1) (“Following (Repl. adoption § the land use commission may prepare plan, [planning] recommended ordinance a zoning submission the legislativebody added.)). area of the for the entire municipality.” (Emphasis held that when a munici This court has routinely it a conferred a exercises acts in power legislative capacity, pality Mobile Lowellv.M & N it the General See Assembly. upon Inc., As a Park, (1996). 916 S.W.2d 95 Home a act of a to an act municipality legislative equates consequence, stated that the See id. We have further test the General Assembly. of a munici whether a resolution or ordinance for determining is is one that makes whether the legislation proposition pality or, rather, in existence. See v. new law executes law already Gregg Munn, Hartwick, v. Ark. 731 S.W.2d 766 Greenlee (1987); 559 S.W.2d 928 (1978). Ark. case, In the instant the Board’s action enacting Not did it was clearly legislative. only the 1987 ordinance and the revise approval preliminary new, PCD, it added conditions but special respecting lighting, site, curbs, sidewalks, a around the security fencing perimeter ring Road, and of Shackleford around Camp Aldersgate, widening of the area. other actions to the infrastructure improve impacted with a This was not zoning conformity previously merely but land-use adopted development plan, comprehensive with future included numerous new effort which requirements Found, v. ramifications. See BuckeyeCmty. Hope City Cuyahoga Falls, 539, 82 Ohio St. 3d 697 N.E.2d 181 (1998). Accordingly, administrative, because the action was not were landowners under 14-56-425. We hold that the required proceed § court, circuit as a court of had sitting equity, subject-matter jurisdiction.

II. Standing that, law, Summit Mall next as a matter argues of landowners did not have because standing, they only presented evidence of and general injuries inconveniences shared by rather than general public injuries themselves. Summit peculiar Mall contends that the landowners’ assertions of relate only injury traffic, to increases in loss of and loss value to greenery, possible maintains, essence, their land. It in that the landowners lack any stake in the outcome of the personal lawsuit.

We that the repeat does not Summit Mall in join this The arguing point. City agrees landowners had to file suit due to the standing fact that this case deals with the City’s commercial largest which single has the development po- tential to affect the entire west Little Rock area. we conclude that

Again, Summit Mall’s is argument and is based on a misplaced flawed of our reading case law. For its authority Summit Mall relies on standing, caseswhich deal with or streets. It is true that vacating closing in city to that challenges action, this court type city has held that a must have plaintiff sustained a or See, special Freeze peculiar injury v. damage. e.g., 193, 197, Jones, 260 Ark. 539 S.W.2d 428 (1976) (“Relief is available to those who suffer special or peculiar injury damage, but this or be special injury must such as is not damage common to public and not general just matter of general public Linn, Little inconvenience.”); Rock v. City of 432 S.W.2d 464 has (1968) (“It been long recognized, however, that relief of a against be closing way public may to those who given suffer distinct special peculiar injury that of the . . . public be general. must one injury] which [The is different in character and not from that degree which every suffers, citizen whose business or causes him to pleasure travel the cases, this line of way.”). this court Despite has never extended this test to individuals who standing challenge ordinary zoning ordinances. Smith, Ark. Fort v. case in A point Mings (Dr. challenged In landowner Mings) Mings, S.W.2d (1986). to St. Board of Directors’ permission Smith grant the Fort lot which was to use its Medical parking Center Edward Mercy to Dr. vacant lot. a buffer zone next Mings’s constructed denied the commission had hospital’s request City’s planning whether lot. In appeal determining parking reopen under City’s the Board an “interested party” before brought matters, ordinance, on zoning which appeals provided Faulkner, a Mr. noted that it was property the court brought “some six in the who owned neighborhood owner commis- had before the blocks and who planning away appeared lot to be used.” in the favor of allowing parking sion spoken said: at at 707. This court 701 S.W.2d however, time, are that we ... It be realized in our should and our role should adversary with the typical proceeding, dealing function of the city whenever the legislative be defer possible Gkeknan, Review SeeM. disputes. Zoning board in zoning Judicial of Arkansas, 22 (1969). in 23 Ark. L. Rev. with to the respect That same deference should be given should we are not dealing of we standing.Again, recognize question The PrimitiveLaw Ayer, with a See typical adversary proceeding. J. of Continent, a Use SomeNotes Dark Land Standing Disputes: (1969). neighborhood, Iowa Rev. 344 Mr. Faulkner lived in the L. trail, first com- used the the planning jogging participated lot. There was as a hearing proponent parking mission that had become because public evidence parking problem trail.While we need allowed unrestricted use of the being jogging whether member of the any public not address here question we not conclude would have as an can standing party” “interested Faulkner no such these circumstances. standing Mr. had 47-49, dealt with Id. at S.W.2d at 708. While case Mings for under a Fort Smith ordinance out setting procedure standing it is that this court “interested telling bringing appeals parties,” for which it had chose not to extend the strict standing requirements or abandonment in cases with the closure dealing imposed previously aof street. hand,

In the case at four of the landowners testified appellee before the circuit court. Hall a resident Ramsey, Sandpiper subdivision in west Little Rock since about testified that his home is located less than a half mile from the Summit Mall He he stated that was to the devel- property. personally opposed it because would make traffic worse in the opment property He area. also worried that his value would decrease because of traffic and that there was the problems potential Palmer, landowner, another testified that she pollution. Carolyn resides in the Barrow Addition and often in the shops John “Chenal and Bowman area.” She testified that she opposed of Summit Mall it because would cause traffic development in that area and the would further congestion cause development loss trees on the Vuletich testified as a land- property. Barry owner and stated that he lives 1.4 miles from the site approximately of the mall and has since He 1988. cited traffic proposed conges- tion, construction, both and after during loss of “green space,” and the effect the will have on air and sound development as reasons he pollution William opposed development. Finally, testified that is a he too resident of the Hyatt subdivision Sandpiper and that his home is of a mile or probably less from the quarter Summit Mall site. His to the proposed mall are specific objections traffic and the for loss to the value of his home. potential sum,

In several of the landowners testified that they were concerned be they would specifically affected adversely by the Summit Mall values, with to development loss respect property air and green noise and traffic We space, pollution, congestion. are facts, hard under these to conclude that these pressed, land owners do not have to the of a standing challenge rezoning large area, tract of located in their property which has the to potential See, their lives. adversely Van Renselaar v. impact e.g., City of 58 Mass. Ct. Springfield, N.E.2d App. that,

(2003) decide for (“We of their to chal purposes standing local that lenge or amends a legislation ordinance or adopts zoning it is sufficient for these by-law, to have established that plaintiffs will suffer an adverse they from the impact legislative zoning action, addition, without in establishing, that their injury special and different from the concerns of the rest of the community.”). An adverse which is the test for impact, general standing, appears to us to be the test for in this matter. See appropriate standing Watkins, Civil Practiceand Arkansas & Newbern David John J. matter dismiss this decline to 2002). ed. We (3d 5-13 Procedure§ of standing. for lack

III. Laches in it have contends that should prevailed Mall Summit it on that against of laches and ruling its defense by circuit court on to an infinite and timeless right court created the circuit this point, the landowners It maintains that ordinances. zoning challenge which time the than ten during for more years, sat silent essentially PCD relied on the detrimentally City’s preliminary company for the by purchasing property for with Summit in 1995. The City mall agrees regional shopping that the of whether laches and adds question Mali’s argument was never raised landowners had 1987 ordinance expired Indeed, the Commission. Board City Planning not made until suit was filed in that the argument emphasizes claims that the landowners upon 2001. The “slept City specifically extended the four after their years expressly rights” final Ordinance Summit Mall file its in 1997 by time for plan 17,423. No. filed suit within

The landowners they thirty respond “flawed enactment” of the 2001 ordinance. days City’s ordinance, 15,385, is that the 1987 contend They Rather, not at issue. the ordinance passed 18,456, further assert that the is the ordinance in They question. or the evidence that Summit Mall circuit court found no correctly to its said or done the landowners relied on anything detriment.

In Richards v. 479 S.W.2d 852 Ferguson, the doctrine of laches this court discussed (1972), application Richards, attack on a ordinance. In we context of an rezoning which set aside an and dismissed court decree reversed chancery two residential ordinance tracts single-family rezoning use. The and small-business opponents apartment before the Board. We out that contested the rezoning pointed months after the had waited twenty opponents time the owner of the ordinance which during attack the validity We the land. said: purchased

206 ... A suit this suchas one seeksan equitableremedy subject is defenses, laches,

to those that including are availablein commonly Anderson, such proceedings. AmericanLaw 23.15 (1st Zoning,§ of ed., 1968). The doctrineof lachesis ordinarily situations applied in whichthe idly hasstood whilethe other complainant has party materially his changed position. 486,

252 Ark. at 479 at S.W.2d 853. We concluded that after the the next move was to the rezoning, We stated up that opponents. they failed to act until after the land for devel- purchase expenditure costs. held that the opment We had their opponents “slept upon and were rights” relief. precluded seeking

This court has summarized the laches defense stat that it is based on the ing that an unreasonable equitable principle delay by relief party when the seeking precludes recovery circumstances are such as to make it or for the inequitable unjust Venable, to seek relief now. See Anadarko party PetroleumCo. v. 312 Ark. 850 S.W.2d 302 (1993). The laches defense requires detrimental in change one the doc position asserting trine, as well as an unreasonable the one delay by his or asserting her whom laches is invoked. rights against See Worthv. Civil Serv. Dorado, Comm’n El 294 Ark. See (1988). S.W.2d Smith, also v. 991 S.W.2d 579 (1999). Goforth case, In the instant the landowners that were argue they 18,456 their timely challenge Ordinance No. and are the 2001 ordinance —not challenging Ordinance No. 1987. contend that the They reason the 2001 ordinance key invalid is because the failed to follow its own procedures extensions of granting time over the decade. further past They contend that some-landowners have lived in the area of the only and, thus, mall for a few proposed are not years to the defense of laches. We on this last Mr. disagree point. Ramsay testified that he had lived in the subdivision since about Sandpiper 1991, and Vuletich testified that he Barry had resided in the area since 1988. It is some the landowners indisputable lived in area, knew about the proposed could have development, their lodged the failure to extend challenge Ordinance No. 15,385 before Summit Mall purchased before Board extended the time for a final in 1997. filing plan was not first time the Board amended the original On March ordinance. an and time on extension passed in for the first the Board stepped a third 17,423, Summit Mall allowed which No. Ordinance 15,385 for that No. and amended extension three-year the exten- Moreover, acted in before granting purpose. sion, two had previous Commission approved Planning City Indeed, the record. All of this extensions. public three-year record out to the Kensington notices were sent reflectsthat specific Neighbor- and the Association Sandpiper Place Neighborhood to the Commission’s Planning public Association City hood prior if the in 1997. Certainly, extension hearing requested for the lack of a request concerning timely landowners’ argument 1, 1990, is December an extension Ordinance ordinance, have it should to the 2001 their crucial to challenge earlier than it was. made considerably been uncontested relied on these Mall Summit unquestionably for of the land as evidenced its extensions purchase there- dollars and its incurred million expenses six-and-a-quarter for mall. Roderick Vosper, Regional after development with New Simon Vice-President of Development Property Mall that exclusive of Summit testified litigation expense, Group, $576,000. had in the amount of Clearly, had incurred expenses 1991, claim the their when landowners filed they complaint the final the time for submission of extended City erroneously 2001, successful, been Summit rather than until waiting plan, Mall would the land in 1995 for six-and-a- have purchased $576,000 worth of million dollars or incurred develop- quarter Indeed, filed had the landowners suit prior ment expenses. 1995, If had would have been stalled. the sale undoubtedly they Summit Mall suit in after the Board itself gave filed extension, could have saved considerable Summit Mall three-year development expenses. are not events contesting

The landowners contend they to a extension that occurred in 1990 or 1991 relating timely are of Ordinance No. but only contesting passage request, in 2001. Yet, that the foundation of their argument very had of time in when it no authority an extension granted Thereafter, and Board do so. all actions of pertaining contend, void, Mall were invalid and the landowners Summit that even under It is clear to this court the circuit court agreed. case, as cause of action accrued of the the landowners’ their theory as the date the first extended early February a final time filing plan.

Because the could landowners have filed suit as as early 1991 and failed to do so until Summit Mall February bought mall sizeable amount of funds expended and thereafter which it would not have had the landowners spent not sat on their We hold that the circuit court erred in rights. Summit Mall ruling and on their defense against City of laches.

IV Referendum Summit Mall next contends that should this court reverse 18,456, circuit court’s which voided Ordinance ruling, No. the ordinance would then be to a referendum. Summit subject more, Mall once under this that because urges the Board’s point, one, decision is an administrative it is not ato subject referendum under Amendment 7 of Arkansas Constitution. Summit Mall further asserts that referendum would rezoning by violate the general scheme for statutory land-use as planning, enacted the General which violates the by Assembly, terms express of Amendment 7. The concurs in this and reiterates argument Camden, and, that under decisions are supra, zoning administrative thus, are not to of subject Amendment 7. The provisions landowners that disagree again Ordinance No. argue a and, was such, act the Board legislative as is a by subject referendum the We our by people. Ordinance repeat holding awas act legislative the Board. Amendment 7 to the reserves residents of munici and counties the of palities initiative and right referendum. This court has held that the of referendum is right granted the people character, of legislation, whether the every affects legislation all or a of citizens of part affected. See municipality Carpenter 454, v. City 198 Ark. Paragould, 128 S.W.2d 980 To that (1939). of end, action is only legislative referendum. subject See e.g., 1136, Lawrencev. 228 Jones, Ark. 313 S.W.2d 228 (1958). The decisions of officials in certain city matters are legislative nature since the state has legislature delegated power comprehensive various areas of the planning classifying city into zones or classifications. McMinn proper See v. Little City 458, Rock, 275 Ark. However, 631 S.W.2d 288 (1982). as this Kerr, 137, court stated in v. Scroggins S.W.2d 995 if there is a law (1950), enacted which already authorizes the very ordinance, action a for later provided resolution then there no a to have right referendum on the new measure. In other law, not a device is a words, “procedural there new when only have a referen- is there a an old law[,]” right for administering 145, at 999. Ark. at S.W.2d dum. 217 whether Little In the issue presented Scroggins, execution of which authorized Rock and the federal Public the City between agreement” “cooperation of certain low-rent the construction Administration Housing under be to a referendum could petition housing projects, to vote of the Prior to submitted Amendment people. 19,1949, the on December Ordinance No. 8163 adoption October No. 6010 on Board had adopted which authorized agreement” permitting “cooperation with the local authority to enter into housing mayor agreements of an number for the erection and operation unspecified This found that the Board’s low-rent court adop dwellings. act, a said: tion Ordinance No. 8163 was we legislative . law which what 8163 . . There was no authorized previous True, law forbade what 8163 declared should be done. no prior authorized, but that is not the The is that without 8163 point. point no there would have been law in Little Rock authorizing of a con- covering particular execution cooperative agreement demolition, incidental rights, struction and numerous therewith, which 8163 connected privileges exemptions pro- vided for. sense,

Ordinance was real in this since housing legislation 6010 it under which actual authorized construc- cooperative agreement and demolition be carried out. But did not tion were to for, that 8163 calls nor gives authorize cooperative agreement the construction and demolition that would be authority for any that,it out under On to remember that 6010 carried 8163. is enough included the limitation that the number “unsafe express authority units” to be eliminated under its insanitary dwelling no exceed whereas 8163 authorizes should in event approxi- such with the number mately correspond eliminations same reading question of new careful of 8163 shows without dwellings.A it for and different housing apart new provides projects, done and in addition to those authorized 6010. What is be under 8163 could not be done under 6010. Ordinance 8163 is a new law, and not mere device for procedural some administering enactment____ previous 145-46, 18,456 Ark. at at 228 S.W.2d 999-1000. Ordinance No. far administrative in accordance goes beyond with a land-use isIt new that, with future ramifications. We plan. legislation conclude matter, 18,456 as a to a legislative referen- dum.

In an of Facts entered Agreed into all of the Stipulation trial, in this matter parties prior to these facts: parties agreed 18,456, 29. After the of Ordinance No. passage various people circulated to refer Ordinance petitions to the voters for an election to Amendment pursuant 7 to ArkansasConstitution. These petitions were tendered to the Litde Rock City Clerk on 2,2001. May

30. Little Rock Clerk Wood Nancy determined that the petitions submitted to her office seeking to refer Little Rock to a referendum contained a sufficient number vote, valid signatures in order to refer the ordinance to a assuming referendum this ordinance is permissible under Arkansas law. There was no evidence of fraud. for the court to question resolve is whether this stipulation by renders the referendum issue

parties our review that so we can ripe referendum, order a as the landowners before the circuit requested court. We conclude that it not. does

The circuit court concluded that the referendum issue was moot of its decision light on the merits in favor the landowners. The court then went on to address the referendum issue in what was an anyway, clearly advisory found opinion, that the Board’s of Ordinance passage was legislative action. Facts, the Despite Agreed the court did not Stipulation rule on the landowners’ for an order the prayer to directing schedule a referendum election. whether a referen Accordingly, dum election be should is not an issue approved before this court See Universal appeal. Trinity Ins. Co. v. State Farm Mut. Auto. Ins. Co., 246 Ark. 441 S.W.2d 95 (1969). referendum is the of the because status

We remand to All we the record before us. appear difficult to determine that the signature from the Clerk is an affidavit at hand have the of valid signatures, a sufficient number contain petitions the landowners’ of Facts by parties, Agreed Stipulation election. Whether court to call a referendum for the circuit prayer as a referendum election part desire to the landowners pursue Suffice it to remains to be seen. say this suit or separate litigation an is not issue of the referendum petitions sufficiency this before this court in appeal. landowners’ com- on the basis that the

Because we reverse laches, the other issues we need not address was barred by plaint Mall and raised Summit City.

Reversed and remanded.

Imber, concurs. J., Imber, I

Annabelle Clinton concurring. agree Justice, However, and remanded. that this case should be reversed this I to court’s cannot subscribe effort distinguish majority’s Sutton, v. 339 Ark. decision in Camden Dev. Cmty. Corp. this court will henceforth determine S.W.3d 439 (1999). Specifically, or administrative nature by whether a legislative zoning proposal board at whether looking city rejected proposal. passed I that the with do Additionally, agree majority’s implication landowners’s cause of action accrued as as early February Summit Mall additional when the Commission City Planning granted to file a time final plan. — Proposal

Rezoning Legislative Sutton, v. In Camden Dev. Corp. Community that a of this court held (1999), S.W.3d 439 majority Thus, in nature. the court held that was not legislative proposal to the initiative under Amend- was not subject process proposal case, In that the Camden ment Arkansas Constitution. to re- sought permission Community Development Corporation its Id. of Camden’s Commission Planning zone The City property. be but it failed to recommended the ultimately adopted proposal, Id. in Camden then Board. managed appellant Id. trial rezone on the election ballot. A general its. get petition rezone are that the whether court ruled “issues concerning decisions, administrative not are legislative, thus not the initiative Id. A of this court affirmed that process.” majority Id. ruling.

The in Camdenwas stated as follows: majority holding we have determinedthat

Specifically, the factsof this casedo not reflectthe occurrenceof any legislative by action . . . City Board’sdecisionto not accept Commission’s [T]he administrative rejection ofthe proposal only admin- proposed istrative action and did not legislative constitute action any administrative action Board. Sutton, 373, 442..Moreover,

Camden v. 339 Ark. at 5 S.W.3d at labeled the majority commission’s recommendation to re- planning zone as a administrative action.” Id. The “proposed court’s opinion noted the decision in v. Smith, 342, Wenderoth Fort 251 Ark. City of 472 S.W.2d 74 in which we (1971), concluded that ordi- zoning nature, nances were in and overruled legislative Wenderothto the extent that it was inconsistent with the Camdenv. majority opinion. Sutton, supra. I reiterate the thrust of my dissenting Camden: opinion erred in that a majority holding rezoning proposal rejected by Board is not in nature. The in such a legislative fallacy of holding particularly our apparent light holding City of Inc., Park, Lowellv. M & N MobileHome 323 Ark. 916 S.W.2d 95 (1996), where the council denied a city that was zoning request Nonetheless, recommended commission. we planning stated that recent we have years, written that the frequently “[i]n branch

judicial does not have to review authority zoning novo, de as legislation that would constitute an unconstitutional of the taking power branch.” Lowellv. legislative Mobile Home, The Camden supra. is even more remarkable in holding view of our recent statement in v. West 352 Ark. Murphy City Memphis, 315, 101 S.W.3d 221 (2003), ordinances are zoning legislative fact, enactments. In it is well-settled that ordinances are as a general matter legislative actions. See v. West Murphy City of Home, Lowell v. Mobile Memphis, supra; Little Rock v. supra; City 619 S.W.2d 664 Breeding, (1981); v. City Conway 266 Ark. 584 S.W.2d HousingAuthority, It (1979). neces follows that a sarily recommendation to rezone is recommenda tion to take action. legislative

213 the majority’s created dichotomy by to the now Turning bar, case at the majority from the Camden to attempt distinguish a or a board whether rejects adopts distinction city its upon hinges in the the facts also asserts that The majority rezoning proposal. difference, however, factual The only case are different. Camden the City case is that in Camden and the instant Camden between the plan- recommended by the Board rezoning proposal rejected whereas, a commission; case the in this passed ning In recommended commission. the by planning rezoning proposal were before cases, ordinances the properly both proposed zoning 14-56-422 to Ark. Code. Ann. (Repl. Boards the City pursuant § made the error illuminates grave The 1998). majority opinion is, on the court; focused Camden erroneously the Camden Board, the as to the nature of action taken by opposed Moreover, now at issue. the majority compounds proposal made in Camden. error law has bifurcated the this court people’s

Today effectively to Constitution. Amend- under Amendment 7 the Arkansas power to initiative and referendum ment reserves powers people’s local, “as to all the local voters of each and county municipality character and their every municipal legislation special counties, but no local shall legislation municipalities respective law the to be enacted the Constitution general contrary any in this case and in to the State.” According majority opinion Camden, a reserve the ordinance right rezoning people refer Board, but not to initiate enacted do reserve power such a ordinance. Amendment does not a rezoning support is be We have held that Amendment 7 to liberally distinction. long be effected. v. in order that its construed purposes may Greg Thomasv. Hartwick,292 Ark. 731 S.W.2d 766 & (1987); Leigh Hall, 232 Ark. 339 S.W.2d 504 (1960). Allowing rezoning but to an be to referendum not initiative subject process narrowly 7. construes and distorts the Amendment granted powers sum, I its In believe that the valiant majority opinion, bar, case effort to Camden from the at improperly distinguish reserved the initiative and referendum powers separates under Amendment 7. The of Amendment language plain people nature of rezoning makes no such distinction. legislative static; is it does not vote by legislative change upon proposal held that a The Camdenmajority rezoning proposal body. Thus, 7. if we the initiative under Amendment subject process decision, are to remain faithful to the Camden issue here should not be to a referendum under Amendment 7. subject In I reiterate dissent in concurring today, Cam- merely my den. in nature Rezoning legislative to the people’s initiative and referendum under Amendment 7 to the powers Arkansas Constitution. Because instant case and Camden are I believe factually this court should acknowl- indistinguishable, its mistake and edge overrule that decision.

Laches In that the landowners’ holding barred complaint laches, doctrine of relies majority our opinion primarily decision in Richards v. Ferguson, S.W.2d 852 case, In that we (1972). the doctrine of laches based on a applied failure to attack a case, ordinance. timely In this ties laches to a time majority extension approved by Commission on Planning 1991. While I February agree the time record, extension was a matter of it is public unnecessary to hold that the landowners’s cause of action accrued upon City Planning Commission’s of a time because approval extension the landowners waited four of an ordinance from the years Board’s enactment time extension. permitting three-year In my view, the doctrine of laches the landowners precludes from seek- relief because ing their they “slept upon after rights” extended the time expressly for Summit Mall to file its final 17,423. enactment in plan by 1997 Ordinance No.

Case Details

Case Name: SUMMIT MALL CO. LLC v. Lemond

Court Name: Supreme Court of Arkansas

Date Published: Dec 4, 2003

Citation: 132 S.W.3d 725

Docket Number: 02-1337

Court Abbreviation: Ark.