Trice v. City of Pine Bluff

evidence to that finding. Washburn never used the support road and the told testimony was Foran Washburn he was only to clean out the ditches and fill the holes in going an road. There was abundance of testimony that road had been maintained in such a for A way tenant’s years. duty the landowner reasonable care to guard exercise Reese, against to the injury property. Kirkpatrick v.

124, There is no (1951). support 240 S.W.2d evidence to finding Washburn his duty breached Molitors. In fact, it might easily inferred that had tenant known Foran, such an extensive project was contemplated by he Molitors, would have told the he did because tell them about Therefore, change power lines. the judgment Washburn is against dismissed.

There is no fees in provision a case such as attorneys’ this and without express statutory authority such fees are not permissible. Hruska, American Physicians Insurance Co. v. Therefore, 428 S.W.2d 622 judg- ment is affirmed as modified.

Affirmed as modified. TRICE,

Garland OF CITY Jr. BLUFF, PINE Arkansas 82-233 649 S.W.2d of Arkansas Supreme Court delivered Opinion April Cross,

Othello C. for appellant. Jones,

Berlin C. Asst. City Atty., appellee. from Dudley, Robert H. This is an appeal Justice. ordinance. The convictions for a violating city zoning is the ordinance was too narrow issue involved whether that the to be enforced criminal law. We hold through vague in definite warning ordinance did not fair give appellant and we reverse the that his acts were language prohibited in the case involves conviction. is this Court as Jurisdiction (1) of ordinance as Rule validity municipal applied. the a (c). zoning

The of Pine Bluff has a City comprehensive owns two lots in the which are city ordinance. Appellant The issued a city permit residential designated purposes. use, on the lot for a a non-conforming garage, to appellant home is located. the from the tract on which his across street about use city appellant’s The neighbors complained However, did not think lot with the garage. appellant the zoning he was the uses violating proscribed ordinance. result, charged municipal

As a the city appellant City of five counts of “Violation separate court with ’’ appealed convicted on all counts and Ordinance. was He There, of the con- at the commencement circuit court. trials, of inquired the circuit judge solidated prophetically as follows: city attorney the This is cases Number City appeal

THE COURT: 82- 137-1, 137-A-l, 137-B-l, Number 137-D-l. 137-C-l Now, if it is in in ust language, tell me somebody j plain is with. I what the man charged plain language, assume, before, to do something I said that it has as truck area the City with a truck in an of that driving to be not in. supposed No, sir. (City attorney)

MR. JONES: it. THE That’s not COURT: — 137-D, MR. That is truck driving JONES: Well, is if tell me what we THE don’t COURT: 137-D The I’m interested in are not ones trying only 137-D. man is are and what the ones we trying I so when we take the facts can understand charged with — — he it out whether he Try figure what You know violated it or not.

MR. Violation of (City attorney) KEOUGH: Section ordinance City zoning Ordinance Bluff, of Pine in an residential permitted uses R-3 City district. not on charge questioned sufficiency count, 137-D, dismissed circuit court One was

appeal. found on the other four counts. but appellant guilty days because four different The convictions were had on following: (1) “grass administrator found ... a pile and some stored needed other items cutting lot,” lumber,” (3) on the “a (2) “an 18 wheel tractor-trailer truck, truck,” “another pickup (4) approximately is ton.” The before this Court whether the specific question in language a fair definite gives person warning ordinance grow prohibited: allowing that the following (1) grass truck, lumber, a (2) large storing parking too high truck, a medium truck. parking and (4) a small (3) parking be enforced either judicially by ordinances Zoning may Home or Mountain v. City civil criminal proceedings. enforcement, 553, 267 Civil (1954). 503 Ark. Ray, 223 form, usually injunctions most is actions by common actions, an am In those civil declaratory judgments. a meaning or one with double ordinance biguous so that is given construed the courts effect by 129 intent. The legislative rule for enforcement criminal by action is different markedly because there can be neither created constructively criminal offenses nor criminal of- fenses established by implication. International Harvester State, 517, Co. v. Ark. 79 96 S.W. (1906). 119 Ordinances criminal creating offenses must be clear and unambiguous. In civil law we inquire into what the meant but legislature in criminal law we into inquire only what the statute means. State, 259, 263, Lewis v. 195, Ark. 220 (1952), 247 S.W.2d State, 218, citing Giles v. 190 Ark. It is (1935). 78 S.W.2d 70 this difference that makes a criminal a proceeding poor vehicle for resolving such as the one dispute before us. Instead of seeking a declaratory for the judgment interpretation of the ordinance or an injunction against uses, impliedly proscribed the city to resolve this sought dispute process Therefore, of a criminal action. we examine the ordinance for vagueness, standard for criminal statutes.

The standard by which we determine whether an ordinance is vague whether the ordinance gives person average a fair intelligence in warning definite language State, 572, prohibited act. Ark. 626 S.W.2d Jordan (1982). The material section of the ordinance appended to this opinion. There is no in warning definite language that the ordinance in created a question criminal offense for allowing to exceed grass a certain or for height, lumber, storing or for trucks. The parking city’s argument tacitly recognizes that there was no warning definite language but it contends that the ordinance is an exclusive zoning ordinance and therefore all uses other than proper residential uses are criminally excluded. From this basis the city constructively would create the four implication criminal offenses. this be valid in Although argument might uses, a civil action to determine see permitted Ferguson v. Pine, Mountain City (1983). 647 S.W.2d it is irrelevant of criminal laws interpretation which are subject to strict guidelines of Lewis v. interpretation. State, 259, 263, 247 S.W.2d Moreover, the demonstrate the following questions fallacy in this For interpretation ordinance. how example, lumber, tall is grass which is too How if tall? much can any, 130 What, lumber, besides is from being stored? prohibited so,

stored? an automobile be on one’s land? If May parked an automobile be when truck why may parked pickup contains no written Quite obviously, not? ordinance standard which by Logic can be answered. questions dictates only conclusion: that a administrator and a decide what constitutes an offense without judge 112, 118, Smith, written standards. In Davis v. 583 266 37, 41 (1979), we stated: cases, In criminal discretion in the hands placing without standards police prescribing any govern- its exercise is which renders ing another instance void statute v. vagueness. Papachristou City of 839, 156, Jacksonville, S.Ct. 31 supra U.S. [405 which, vagueness, law due to (1972)]____A L.Ed.2d leaves basic matters in the criminal law field to policy either policemen subjective on an ad hoc and judges basis, with dis- attendant dangers arbitrary criminatory application, Grayned also impermissible. 104, 2294, v. City U.S. S.Ct. Rockford, supra [408 A law that is so (1972)]. vague L.Ed.2d 222 decide, standardless that it leaves free to judges jurors standards, without any legally fixed what prohibited and what is not in fails to meet each case due particular process requirements. Pennsylvania, Giaccio also, U.S. 86 S.Ct. See L.Ed.2d 447 Jackson, Andrew ex 158. parte, offense, If an ordinance can be construed to create a criminal not its by definite but to a according language, merely ordinance, zoning administrator’s of that we interpretation become a state governed not laws but administrators. seeks to city danger by placing minimize this reliance on the knew that in his argument appellant use, for a for a he stated application permit non-conforming would be used to an automobile and knew garage park the manner in city which the its own ordinance. interpreted Therefore, However, he city argues, had fair warning. criminal offenses cannot rest what an properly upon appli- cation stated when that does not form a application part charge, upon neighbors thought what upon warning ordinance meant or gave what an administrator upon interpretation based his own of the ordinance. validity provisions The determined is of the criminal ordinance language language of the ordinance. That vague and the conviction must be reversed.

Reversed and dismissed.

Hickman JJ., dissent. Hays,

APPENDIX SECTION 9 R-3 RESIDENTIAL Description A. General and Intent of District.

This District is intended for use in residential neighborhoods which meet one or both of the follow- ing criteria: generally required

1. Lot sizesare smaller than those the “R-l” zone in area or dimension. It can be established that the

2. residential character of neighborhood preserved improved by can best allowing a broader mix of uses in “R-l” than allowed areas.

B. Permitted Uses Single Family Dwellings

1. Accessory Buildings Uses and

2. 3.

Duplex (with sq. 7,800 lot area of ft. and a lot width ft.) of 65 Occupation

4. Home Any single 5. lot subdivided and recorded as of the fifty (50) Ordinance, effective date of this with a foot building (5,000) line, width at the and five thousand square may area, feet of be used at the discretion of the Zoning required Administrator where R-3 setbackscan be met. following comply with the uses

6. Office which city regulations. regulations and other additional Approval Upon Review and Uses Permitted C. Planning Commission impose special Planning Commission relating considerations as the site

conditions plan, screening to such approval parking for as a condition any following uses of appropriate other it deems uses public health, protection for the safety and welfare. Playgrounds

1. Parks and Day-Care Family Home

2. Rooming Cemetery

3. House

4. Semi-public Uses

5. Public & 6. Course

Golf Tennis Courts

7. Elementary other 9. Public Schools and educational equivalent to Public institutions with curriculum Elementary School. (See 24-(M))

10. Churches 11. Section Garage Apartments (Occupied by Relatives) functionally in a Professional Office converted 12. single family obsolete residence. functionally in

13. Restaurant a converted obsolete family single residence. appropriate opinion

14. uses in the Other deemed Adjustment Zoning which conform to the Board intent of can be demon- basic this district and which equal strated to be to or less intense than other permitted uses in this district. Parking Requirements

D. (2) parking spaces required shall be

Two off-street family duplexes single residences. Other uses provisions provide parking in with shall conformance of Section 23. Height, Regulation

E. Area and Structure — Height Regulations building

1. No shall exceed thirty-five two and one-half stories nor shall it exceed (35) height. height feet shall be measured from (FFL). the Finished Floor Level Space Regulations 2.

a. Lot Area: A minimum of seven thousand two (7,200)square duplex hundred Afeet. must have eight thousand, minimum of seven hundred (7,800)square feet. building

b. Lot A minimum Width: width at the (60) sixty duplex setback line of feet.A shall have a sixty-five (65) minimum of feet. twenty-five (25)

c. Front A Yard: minimum feet. yard

d. Side Yards: The minimum side shall be (5) yard five feet. The side on the street side of each twenty (20) corner lot shall not be less than feet. twenty (20) e. A Rear Yard: minimum of feet. AccessoryBuildings any f. property shall be set back from (5)

line a minimum of five feet. g. Building Coverage: forty-five A maximum of (45)percent of the lot area. Regulations

3. Structure Only dwelling per regardless lot, unit size, of lot permitted except garage apartments will be provided as for in this Ordinance.

F. Dimensions

Each structure shall have a minimum total dimen- twenty (20) sion on each side of feet and the entire twenty (20) permanent feet shall be finished on a foundation. joined

More than one modular unit and providing joints considered one structure are completely they sealed in such a manner that are not structure, discernible from the exterior of the no way mobility. indicates This section shall not include storage buildings accessory or other minor structures. Rather than Justice, dissenting. go Hickman,

Darrell decision, to the only go to the record to reverse this we should record to affirm the decision. Rather than view evidence most we must view it most favorably appellant, Service, v. to Hamlin Inc. favorably Flying appellee. Ark. Breckenridge, 275 Rather for a find way than search to an ordinance unconstitutional we must first it is constitutional and to it a presume try give tests if construction which would meet constitutional Adjustment construction reasonable. Board Fayette Inc., ville v. Oil Osage Transportation, & cert, U.S. 941 Connors (1975), (1975); S.W.2d 836 denied 423 (W.D. F. Riley, 1975). Supp. 1244 decides a case that majority opinion essentially court, not to nor presented fairly the trial as such represented on If our are to appeal. any significance, rules have appellate if who in trials to have in the parties prevail any are security if trial to have con- judicial process, judges any cases, fidence in our to approach reviewing this case must be affirmed.

It say grass is not for us to how tall can or what grow, area, vehicles can be in a residential and those are not parked to role to us. Our in this case is review questions simply Is questions presented: two the ordinance constitutional measure, reasonable and was there substantial evidence any support to trial court’s decision. favorably appellee most stated

The evidence Trice, of irritation been source had appellant, this: he business from ran a for some time because his neighbors Bluff, in in Pine a residential area which located his home except used no other purpose can be for area that an street from lot across the Trice a vacant bought residential. a to house, as place was purchased which he admitted his vehicles, He vehicles, he insists. as just his business park it the on but to a garage build permission was granted it for automobiles. parking was limited to using permission words, deceptive. deliberately he was other In lot, After several were made of his use of the complaints a official checked the lot on four city days: separate 16, 17, 18, November and December On those days 1981. the official noted what he were uses. thought improper his to which was According testimony, photo- supported by on there was an 18-wheel and a graphs, day trailer one-ton truck with a fuel tank on the There parked property. tires, were also tall grass, and a of lumber on the lot. pile Over the next two days the trailer was but the other gone 1,1981, remained. On things December an 18-wheel tractor- trailer was on the lot being cleaned a steam by cleaning service.

Trice admitted he was the lot for his business and using he was with an use charged improper property. circuit judge, without a sitting jury and with charged facts, the s finding summed up by evidence saying: jmply He’s the trucking business. . . . The was garage automobiles, use, built for and that was personal permitted. Maybe shouldn’t have been I permitted. truck, nevertheless, don’t know. But a ton and a half truck, an pickup automobile and 18-wheeler with a an bed truck and a of lumber indicates to me there is pile on something going there besides sleeping eating, and I’m not the work such but if condemning you as are on kind going carry of operation you going to have to find another to do it. You can place park your truck as I understand at residence but your overnight, can’t use that vacant lot over there as a you just simply from to unload excess lumber or to place operate unload a torn-up truck bed to clean up equip- ment or repair your That’s a equipment. part business it does violate the ordinance. operation, So all we must decide is whether there is substantial Trice evidence that improperly using property other it is not something than a residential Indeed purpose. even that was what Trice was and there was disputed doing, no So it is not a objection charge. height question violations; it is or notations a civil servant of grass, which reviewing judge, facts found a trial question by substantially supported evidence. if the honor we must The charges, objection majority made as to the no was concedes anyway. dwells them but on compre question but is a routine The ordinance property uses declares what ordinance that hensive may necessarily may put not be uses to and what only record, employed. in the The ordinance is not take made to it at the trial. We cannot were references City municipal judicial of a ordinance. Orrell v. notice excerpt Springs, The Hot reprinted by 578S.W.2d by majority appellee and was furnished appear in not the record. did allowing provision penal can surmise there was a

We ques- ordinance; that not fine for each violation provision tioned, not We do itself is in the record. but the question neighborhood this there is no know exclusively Residential zoned zoned as a residential area. may not, commercial, property course, be used agricultural general industrial, uses, which the other specifically categories, in the ordinance. unless authorized specifically appellant provision of the The attacks one provision unconstitutional; defines ordinance as accessory obviously property. put his It to which an owner uses case, is not even mentioned controls this and provision, appellant, majority. quoted us accessory an as: defines use customarily appropriate incidental, sub-

A ordinate to the use building;

principal on use of land on the lot. located same argues appellant in his brief this an unconstitutional

The provision unspecific “which terms because these are broad ready themselves to measurement.” do not lend (1977), State, we In Martin language defining statutory upheld as constitutional some injury causing degree battery serious kind first as manifesting extreme circumstances “under indifference compre- average person can human If the the value of life.” hend that one language, surely can know what uses are incidental, customary, and appropriate subordinate to resi- means, dential use. Necessarily it when the or- zoning dinance is a given reasonable interpretation, that one cannot commercial, business, use such property industrial or agricultural purposes.

Common sense has to be applied interpretation Russell, statutes and 140, ordinances. Henderson v. Ark. 267 589 565 S.W.2d Would it (1979). the if satisfy majority ordinance had mentioned all the “Thou shall nots” instead and succinctly clearly stating what the could be property used for? That would make much less sense than spelling out, does, as the ordinance apparently only what be used property may for.

I would ordinance, not strain to strike down this in the dark, so to The speak. appellant essentially says ordinance is invalid because of the use” of “accessory And provision. that is the I question would answer.

The ordinary person would not have to speculate State, of this meaning 572, 626 provision. Ark. Jordon “ (1982). An S.W.2d 947 ordinance which . . . defines citizens, boundaries distinct for sufficiently all policemen, juries appellate is not judges impermissibly vague.” Smith, Davis v. (1979). See State, Martin v. supra.

The provision ordinance under attack of a part code, the primary of which is to define how purpose may not use There is a sanction property. penal for violations.

This is a simple case. The appellant obviously lot, a business on running residential and that what the trial court found. not run appellant knew he could there, trucking business I yet he to do so. would proceeded our usual apply rules of and affirm the appellate procedure case. I would make no blanket and all concerning any rule of this provisions parties ordinance on the chance have v. City us all relevant See Bethea portions. submitted to Rock, Little 612 S.W.2d Hays, J., this dissent. joins et al ALLEN et al v. Gene TITSWORTH Don W. 649 S.W.2d 185 82-293 of Arkansas Supreme Court delivered Opinion April

Case Details

Case Name: Trice v. City of Pine Bluff

Court Name: Supreme Court of Arkansas

Date Published: Apr 25, 1983

Citation: 649 S.W.2d 179

Docket Number: 82-233

Court Abbreviation: Ark.