Posted by: Patricia Salkin | December 17, 2009

Arkansas Supreme Court Holds City Council Zoning Decisions Not Subject to De Novo Review

PH, the developer, desired to subdivide its property into twenty lots.  The developer also sought a rezoning of the property from A-1 (agricultural) to R-1 (residential).  The planning commission approved the plat application but denied the petition to rezone.  PH then appealed to the city council, who also voted to deny the rezoning. At issue was whether a city council’s decision to deny the plaintiff’s rezoning request was subject to review under section 14-56-425 of the Arkansas Code.  Under this section, final municipal planning decisions, including decisions regarding land use and zoning, that are made by administrative and quasi-judicial agencies of local governments may be appealed to the circuit court and “tried de novo according to the same procedure which applies to the appeal in civil actions from decisions of inferior courts, including the right of trial by jury.” Thus, if the city council’s zoning decision was administrative or quasi-judicial, the plaintiff could appeal the decision to circuit court under the same procedures that apply in civil cases—including the right bring the appeal before a jury.  If, however, the city council’s decision was legislative, then the decision may only be reviewed by a court to determine if the decision was arbitrary, capricious, or unreasonable. 

After reviewing its precedent, the Court concluded that a city council decision to approve or reject a zoning request was legislative because local governments were given the discretion to make zoning decisions by the General Assembly, and as such, the exercise of that discretion is legislative in nature.  The Court expressly overruled its prior precedent, and as a result, such decisions are not subject to de novo review by the judiciary and therefore not subject to the de novo review authorized by section 14-56-425 for review of municipal planning decisions made by administrative and quasi administrative agencies. 

The Court also noted that the refusal to rezone did not constitute reverse spot zoning , and declined to address the question of whether contract zoning would be permitted in the state. 

PH, LLC v. City of Conway, 2009 WL 3400682 (Ark. 10/22/2009).

The opinion can be accessed at: http://courts.arkansas.gov/court_opinions/sc/2009b/20091022/08-1383.pdf

See www.Hoglaw.org (a blog my Albany Law School alumnus Jerald Sharum, Esq.) for a summary of this case and other Arkansas case law.


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