Z-5671 Application 2meeting. Neither would the location of underground storage tanks be an issue, for the gas storage
tanks are located even farther away from the right-of-way than the gas pumps. R. p. 28.
iThe point was made during the board's discussion of the Goss matter that the dedication of
right-of-way would make no change to the property until such time as the state were to widen the
road. App. p. 72. Furthermore, there would have been no loss in overall value of his property, even
with a dedication. R. p. 284-85.
The City's denial of rezoning was not arbitrary
Although Goss misrepresented to the City in his rezoning application that he sought rezoning
"to conform to present use of property," App. p. 92, R. p. 29, the rezoning of his property to C-3
General Commercial zoning would have accomplished far more than removing the nonconforming
status of his existing businesses on the one lot. R. p. 232-33. The C-3 zoning category allows 81
different commercial uses by right, with another 24 uses possible through conditional use permit.
App. p. 38, 78-81. As the trial court correctly observed, Goss could have sought Planned
Commercial Development ("PCD") zoning which would have allowed him to preserve the
commercial uses that were already existing at 6024 Stagecoach Road. A PCD classification, unlike
1 C-3 zoning, would not have given him the additional right to use that half of the property, that
located at 6000 Stagecoach Road and which is now residential property conforming to its R-2
zoning, for any one of those hundred commercial uses or to put one or more intense uses permitted
I
under C-3 on the commercial half.
The legislative reasoning -for the 01y directors' votes is largely unknown
In its findings of fact, the trial court found that "[o]n February 21,, 1995, the Board of
Directors refused to rezone the property to "C-3" zoning without the dedication of the 55 feet for
r
i possible future expansion of Highway No. 5 on grounds that the City Treasury would otherwise have
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to pay condemnation damages." Addendum p. 5. The City disputes the finding that these were the
only grounds for the City Board's decision to not rezone Goss' property. The trial court's finding
of the reason why the city directors voted the way they did can only be an assumption and not a fact.
None of the ten city legislators present for the vote was polled to determine the reason each voted
as he or she did. Nothing in evidence confirms or even suggests the reason for every director's vote.
Some of the legislators said absolutely nothing during the discussion held prior to casting their vote
and others only joined in the discussion to ask a question or two. R. p. 232; Plaintiff's Exhibit No.
1.
More to the .point, as outlined below, the Board had before it information which establishes
a number of reasons to oppose this rezoning. It is true that the discussion in which some board
members participated focused in large part on the dedication issue, including the effect on Goss, the
precedent a waiver would set, the potential cost to the taxpayers and a concern about whether it was
appropriate under the facts at hand to waive the dedication or not. Plaintiff s Exhibit No. 1. It is also
true that one legislator voted against the measure after saying that granting the waiver would set a
bad precedent. App. p. 72. Nevertheless, it cannot be assumed that because one or two members
I
expressed their opinion on the dedication issue and a couple others asked questions about it that
those seven legislators who voted against the rezoning did so for no other reason than without the
dedication, the City treasury would have to pay condemnation damages. Nor can it be assumed that
others who were silent based their vote on the voiced opinion of one or another of the more vocal
legislators. "Inquiries into congressional motives or purposes are a hazardous matter." United States
v. O'Brien, 391 U.S. 367, 383 (1968). In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-
48 (1986), the Supreme Court stated: "What motivates one legislator to make a speech about a
statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently
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high for us to eschew guesswork." The Eighth Circuit noted in Ambassador Books that "[a]lthough
those cases (just cited] dealt with Acts of Congress, the principle they announced is equally
applicable to municipal ordinances." Ambassador Books & Video, Inc. v. City of Little Rock, 20 F.3d
858, 863 (8th Cir. 1994).
Furthermore, even where there is an improper motive for a legislative act, the act must
withstand judicial review if there is any rational basis to support the act. The Supreme Court has
said: "It is a familiar principle of contitutional law that this Court will not strike down an otherwise
constitutional statue on the basis of an alleged illicit motive." United States v. O'Brien, 391 U.S. at
383-84. "[O]nly the clearest proof could suffice to establish the unconstitutionality of a statute" on
a claim that "a punitive purpose in fact lay behind the statute. Fleming v. Nestor, 363 U.S. 603, 617
(1960).To do otherwise turns the federal court into a super legislature, something our Constitution
prohibits.
To assist the Board members in making their decisions, a great deal of information was
before them. The directors had written information about the issue, including the same information
that had been given to the Planning Commission. R. p. 146. That information included the
neighbors' letters of opposition to the rezoning, App. p. 86-90, a summary and a packet of
information detailing aspects of the issue, including the character of the existing neighborhood. R.
p. 149-50. It showed that the area sought to be rezoned was surrounded on all sides by R-2 single
family zoning, with residences to the south and east, residences and vacant property to the north, and
vacant property to the west. R. p. 149. The summary before the decisionmakers showed that a
residence was on one of the lots where commercial zoning was sought. The staff summary stated:
Ideally, the property north of Stagecoach Road [where Goss seeks the rezoning]
should be zoned to "C -I" Neighborhood Commercial; however, as long as the uses
are neighborhood oriented, higher zonings could be appropriate. The requested
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zoning [C-4] is too intensive for a "Neighborhood Commercial" area. In the past
several years, the surrounding residential owners have repeatedly made it clear to the
City that this area is a viable, stable single family neighborhood. In order to protect
the existing residential, no zoning should be approved which would encourage either
strip zoning or uses designed to meet more than the neighborhood needs (no regional
commercial or large service area commercial)."
App. p. 75. The zoning that most closely corresponds to Neighborhood Commercial use is C-1,
Addendum p. 74, a less intense zoning than either the C-4 zoning Goss originally sought or the C-3
I
zoning he later sought. R. p. 146-47. The zoning Goss seeks, then, is inconsistent with that specified
in the Land Use Plan.
Indeed, the commercial rezoning of 6000 Stagecoach Road, the lot with the existing
residential use, would have actually created a nonconformity. R. p. 214. "Since nonconforming uses
detract from the overall zoning scheme, they are not favored in the law." Burns v. City of Des Peres,
F 534 F.2d 103, 112, n.7 (8th Cir. 1976).
The District Court was clearly erroneous, in light of the record, to declare the reason ten
legislators voted on the rezoning request. The record clearly provides a rational basis for a legislative
body to conclude that rezoning the property would adversely- impact legitimate City interests,
including maintaining the integrity of the City's adopted land use plan, curbing development in a
primarily residential area where there was known opposition to commercial rezoning of the property,
and avoiding the creation of a nonconformity that the proposed rezoning of 6000 Stagecoach would
create.
In addition, the City's legitimate interests in controlling traffic congestion would have been
adversely affected by rezoning the property and granting the waiver of dedication that Goss sought,
as will be shown below.
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There would be adverse effe t on traffic control without a dedication
The City showed there would be an adverse impact from a rezoning of Goss' property. There
was testimony by Goss himself that the lot with his house is at least half of the total parcel he wants
to rezone. Addendum pp. 36-37. He has no privilege license for undertaking any commercial
activities on that lot. He claims that he used to build car wash equipment there and that he uses the
outbuildings for storage for the businesses and for repairing equipment. R. p. 63-64. Nevertheless,
he also says he is no longer operating his businesses because he has leased them to his son. R. p. 64.
His son, who claims to know the business operation well, R. p. 85, said that to his
knowledge, no business is carried out anywhere else on the lot where his father's house is located.
R. p. 92. By rezoning Goss' 3.7 acres from R-2 Single Family Residential zoning to C-3 General
Commercial zoning, the City would immediately permit 8I separate uses of the property, including
on the residential lot. App. pp. 38, 78-81. Goss admitted that "if I conform to city ordinance, then
I can do whatever I wanted to under the terms of the C-3 zoning." Addendum p. 32.
Goss could "do whatever [he] wanted to under the terms of the C-3 zoning" without ever
having to return to the City for further development permission unless he were to make changes to
his buildings costing $10,000 or more. R. p. 199. The City's planning director testified that without
needing to obtain a building permit, the use and operation of a business could be changed, so that,
for example, Goss' existing grocery store could become a 24-hour liquor store. R. p. 231. If the
existing buildings can be converted to any of the 81permitted uses without changing the structure
by $10,000, the City will have no opportunity to make a rough proportionality analysis and no
opportunity to seek a dedication of any right-of-way regardless of traffic impact.The City's traffic
engineer testified that some of the uses under C-3 have greater impact on the City's infrastructure
than do others. R. p. 263; 269-70. The concern that a heavy traffic -producing business could be
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erected on the property, such as a McDonald's, was raised at the Board meeting. Plaintiff's Exhibit
No. 1.
The Nvairver sought by Goss wQuld have prevented any dedication at a later point
The action taken by the City board must be viewed in context of what the waiver of
dedication sought by Goss, if approved along with the rezoning, would have meant to the public
safety and welfare. The Arkansas Supreme Court, in its "standard statement" concerning waiver in
various contexts and cases, has said in part: "Waiver is the voluntary abandonment or surrender by
a capable person of a right known by him to exist, with the intent that he shall forever be deprived
of its benefits." Lester v. Mt. Vernon-Enola Sch. Dist., 323 Ark. 728, 732 917 S.W.2d 540, 542
(1996), citing Bethel v. Bethel, 268 Ark. 409, 597 S.W.2d 576 (1980). The Eighth Circuit has opined
that "[i]rrevocability is the essence of a waiver provision. Where a party intentionally relinquishes
:ri F
i a known right by waiver, he cannot, without consent of his adversary, reclaim it. A waiver, once
established, is irrevocable even in the absence of any consideration therefor." Fox v. Commissioner,
874 F.2d 560 (8th Cir. 1989) (internal quotations omitted). Furthermore, Arkansas has for years held
that estoppel can be applied against a city. Miller v. City of Lake City, 302 Ark. 267, 269, 789
S.W.2d 440, 442 (1990).
Had the City board passed the measure sought by Goss, approving both the rezoning and the
waiver, the City would have been estopped from later obtaining a reasonable dedication of right-of-
way despite development occurring, even if accomplished -through a building permit. Nothing in the
record suggests that Goss was willing to dedicate any amount of right-of-way to the City at any
point. From the very beginning, Goss refused any request to dedicate right-of-way. R. p. 78. Goss
did not merely seek a deferral until some later date, such as upon application for a building permit
-33-
or upon the imminent expansion of Stagecoach Road, but a waiver. There was testimony that such
a deferral procedure was possible and had been utilized elsewhere on Stagecoach Road. R. p. 168-69.
Rezoning with awaiver of dedication would have been a windfall to Goss
The rezoning of Goss' property, had it been approved along with the waiver as Goss desired,
would have been a windfall to him to the detriment of the City. Goss would have doubled the
amount of property he could use for commercial purposes, enhanced the value of at least half of his
property from residential market value to commercial market value and had the benefit of
eliminating the nonconforming status on the commercial half of his property. And, he would also
get paid an additional amount, based upon the rezoning, when the City had to purchase right of way
to build the road improvements occasioned by this enhanced use. Goss wants the benefit of more
intense zoning and the enhanced value of commercially zoned property without having to contribute
to public improvements that would ease the traffic burdens the commercialization of his property
would generate and that would carry additional traffic to his businesses.
On the other hand, had the measure passed as Goss desired, the City would have been left
with no opportunity to obtain any reasonable dedication from Goss in return for the impact any
expanded or newly permitted and installed use would have created. Instead, the public taxpayers
would have been left with a roadway that was insufficient and additional traffic congestion in the
neighborhood caused by the new uses or development, with the only alternative being for the City
to purchase the needed right-of-way from Goss at the then inflated commercial market value rate
instead of residential market rate.
The City's action was not violative of substaative due process
Nollan teaches that the standards for evaluating takings and due process challenges are
different. Nollan, 483 U.S. at 835, n.3. For a taking claim, the Court requires that "a regulation
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`substantially advance' a `legitimate state interest' sought to be achieved," while for a due process
claim, the inquiry is whether the government "`could rationally have decided' that the measure
adopted might achieve the State's objective." Id. Such a standard as the latter is subjected to a lesser
standard of court review. See Dolan, 512 U.S. at 390.
In Lemke, 846 F.2d at 471-73, the Court considered whether a substantive due process claim
could arise from a denial of a rezoning application. The Lemke case left that question open, but
affirmed the dismissal of the complaint, finding that due process was afforded the appellant
landowner through the availability of state law procedures. Five judges of the court joined in a
concurring opinion by Judge Arnold, who stated that to rise to the level of a substantive due process
claim, a denial of a zoning application should be limited to the truly irrational, like deciding on the
basis of a coin toss, thus excluding "simple rote allegations that the zoning decision is arbitrary and
capricious." Id. (Arnold, J., concurring). In Walker v. City of Kansas City, Mo., 911 F.2d 80 (8th
Cir.), cert. denied, 500 U.S. 941 (1990), the Eighth Circuit affirmed a rejection of a due process
claim brought after denial of a zoning application. The landowner in Walker, to make out a
substantive due process claim, had to show that "the law violated one of his fundamental rights,
which no amount of process could repair." Id., 911 F,2d at 93. Similarly, a denial of a conditional
use permit was not a violation of substantive due process because the government action was not
"truly irrational." Anderson v. Douglas County, 4 F.3d 574 (8th Cir.), cert. denied, 510 U.S. 1113
(1993).
In finding that the theory of substantive due process is reserved for truly egregious and
extraordinary cases, the Eighth Circuit has stated that:
Every appeal by a disappointed developer from an adverse ruling by a local planning
board necessarily involves some claim that the board exceeded, abused or "distorted"
its legal authority in some manner, often for some allegedly perverse (from the
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developer's view) reason. It is not enough simply to give these state law claims
constitutional labels such as "due process" or "equal protection" in order to raise a
federal question....
Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102 (8th Cir. 1992) (citing
Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.), cert. denied, 459 U.S. 989
(1982).
In this case, the City's action in denying commercial zoning and the waiver of dedication
was not "truly irrational," arbitrary or capricious under the circumstances as noted above. This is
a case of traditional land use regulation, short of that which totally destroys the economic value of
property, and does not implicate the Takings Clause.
CONCLUSION
I•
Goss' claim of Fifth and Fourteenth Amendment violations are not ripe because he has
suffered no injury attributable to the City and because he has not sought compensation for the
alleged taking through available state court inverse condemnation remedies.
Furthermore, the Dolan test is inapplicable under the facts of this case when City Board of
Directors declined to pass the commercial rezoning of Goss' property, thereby mooting the
accompanying waiver of dedication, and when the rezoning sought was inconsistent with the adopted
land use plan, opposed by neighbors, and the owner remained in the same position as before the
City's action. The City's action was not violative of the U. S. Constitution where the denial of
commercial rezoning of property, half of which is now residential in use, would maintain the
integrity of the adopted land use plan and avoid creating a new nonconformity. To have voted
otherwise, the City directors would have blocked the City from ever obtaining any reasonable
amount of right-of-way to counter the effects of development of the property and would have
c012
subjected the taxpayers to purchasing necessary right-of-way at the inflated commercial market rate
while Goss received a windfall.
For the above reasons, the obligation of rezoning imposed on the City by the trial court
should be overturned and the Complaint should be dismissed with prejudice.
Respectfully submitted,
Thomas M. Carpenter
City Attorney
Cynthia S. Dawson, 493192
Assistant City Attorney
City Hall - Suite 310
500 West Markham
Little Rock, Arkansas 72201
(501) 371-4527
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served upon Alice Ward Greene,
Brown, Schwander & Greene, 323 Center Street, Suite 1295, Little Rock, Arkansas 72201, by
placing same in the U. S. Mail, postage prepaid, on this day of September, 1997.
Cynthia S. Dawson
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ADDENDUM
I. MANDATORY ITEMS:
Memorandum and Order (February 20, 1996) ................................. 1 1-20
Judgment (February 20, 1996) ................................................ 21
Order (May 13, 1997) ................................................... 22-31
II. DISCRETIONARY ITEMS
Transcript Excerpt of Cross -Examination of Charles Goss ....................... 32-37
Transcript Excerpt of Cross -Examination Glynn Goss .......................... 38-42
Rezoning Summary and Analysis .......................... . ............. 43-46
A
i
MANDATORY ITEMS
I
i -- -.
i
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CHARLES GOSS,
*
Plaintiff,
*
VS.
*
*
CITY OF LITTLE ROCK.,
*
Defendant.
W r A. &. K,#
US DISTRICT COURT
EASTERN DISTRICT ARKANSAS
fEB 2 a 1997
JAMES McC RMACK, CLERK
By. ----
DEP CLERK
No. LR -C-95-180
MEMORANDUM AND ORDER
This case involves a zoning dispute between plaintiff Charles
Goss and defendant City of Little Rock ("City"). Plaintiff filed
this lawsuit on March 20, 1995, alleging that the City conditioned
its approval of his rezoning request on his dedication of a portion
of his property, thus violating the Fifth and Fourteenth Amendments
to the United States Constitution and Article 2, § 22 of the
Arkansas Constitution. The City subsequently filed a motion to
dismiss. By Memorandum and Order dated September 25, 1995, this
Court granted the City's motion, primarily on the basis of
plaintiff's representation to this Court that he had no intention
of changing the manner in which he has used his property for over
twenty years and because he did not claim he was attempting to sell
the property. Thus, the Court reasoned, because plaintiff could
continue to use his property in the same manner in which it had
always been used,, and because that was in fact his stated
intention, he had not been harmed by the_ failure of the City to
rezone his property. The Court of Appeals for the Eighth Circuit,
however, reversed this Court's decision. Goss v. City of Little
A-1
Rock, 90 F.3d 306 (8th Cir. 1996) ("Goss"). Noting that the
plaintiff was attempting to sell his property and that such sale
was contingent upon rezoning (which had not been disclosed to this
Court when it ruled on the City's motion to dismiss), the Eighth
Circuit concluded as follows:
Given that the allegation of facts might entitle relief
in this case, dismissal of this action was inappropriate.
The record suggests that Little Rock's staff based its
condition on a concern that a different, heavy traffic -
producing business could be erected on the property if
rezoned. (FN3] The sparsity of the record, however, does
not permit an inquiry by this court into the existence of
the required nexus or, if a nexus exists, whether the
demanded dedication bears some rough proportionality to
the projected impact of the proposed rezoning.
Therefore, we reverse the district court's dismissal and
remand it for further proceedings consistent with this
opinion.
Id. at 310 (footnote 3 omitted).
In accordance with the decision of the Eighth Circuit, the
matter was tried to this Court on January 13-14, 1997. This
Memorandum and Order constitutes the Court's findings of fact and
conclusions of law as required by Rule 52 of the Federal Rules of
Civil Procedure.'
I. Findings of Fact
Plaintiff is the owner of real property located on Stagecoach
Road, also known as State Highway No. 5, in Pulaski County,
Arkansas. Plaintiff operates a small commercial business on the
property consisting of a convenience store, gas station,
' The Court is writing this Memorandum and Order without benefit of a transcript.
-2- A-2
laundromat, and car wash, and has operated this business for over
twenty years. Under the City's ordinances, plaintiff's business
would be classified as a commercial business appropriate for 11C-3"
general commercial district zoning.
Plaintiff's property originally was in an unincorporated area
of Pulaski County. In 1985 the City annexed this area, including
plaintiff's property, and zoned the area as "R-2" single family
residential district. Although plaintiff's property has been zoned
residential since the annexation, he .has operated his business
continuously since that time as a non -conforming use.
In April of 1993, plaintiff petitioned the City to have his
business area rezoned to 11C-3" zoning, which would be consistent
with the manner in which the property was already being used.
Plaintiff originally petitioned to have his property rezoned to "C-
4" zoning (the most intense of the commercial zoning
classifications) but later down -graded his request to "C-3" zoning
after the City planning staff stated that they would recommend
against rezoning the property to "C-4" but would support a change
to "C-3" zoning. There was nominal opposition to plaintiff's
application in the form of two letters and two phone calls.
In seeking to have his property rezoned, plaintiff concealed
from the City the fact that he was attempting to sell his property
and that a purported verbal offer by his son and a business
associate to buy the property for $515,000 was contingent upon
rezoning. In this regard, plaintiff states that he misrepresented
A-3
-3-
on his application form provided by the City the true reasons for
which he was seeking rezoning.
On May 24, 1993, the City, through its staff and Planning
Commission, reviewed the application and agreed to recommend to the
City Board of Directors that the area be rezoned to a "C-3" general
commercial district. This recommendation was conditioned, however,
upon the plaintiff dedicating to the City a portion of his property
as an additional right-of-way to Highway No. 5 for future
expansion. The demanded dedication ran the entire length of
plaintiff's property (633.68 feet) and 55 feet into the lot.
However, because plaintiff's property line extended to the center-
line of the highway, 30 of the 55 feet at issue was already used by
the public and could not be utilized by plaintiff, regardless of
the zoning classification.2 Thus, instead of a 55 foot dedication,
the requested dedication amounted for all practical purposes to 25
feet.;
Plaintiff objected to the required dedication and requested
that the application be submitted to 'the Board of Directors as
originally prepared. Plaintiff's request was granted and the
application was submitted to the Board on February 21,E 1995. The
Planning Commission and the City's staff recommended to the Board
that the rezoning as requested in the application be approved, but
2 30 feet on each side of the center -line of Highway No. 5 is a public prescriptive easement.
3 The City staff later recommended a dedication of 50 feet from the -center -line instead of 55 feet, thus amounting
to a requested dedication of 20 feet.
-4-
A-4
that plaintiff's requested waiver of the condition requiring
dedication of 55 feet of plaintiff's property for future public use
as a road right-of-way be denied.
On February 21, 1995, the Board of Directors refused to rezone
the property to "C-3" zoning without the dedication of the 55 feet
for possible future expansion of Highway No. 5 on grounds that the
City Treasury would otherwise have to pay condemnation damages.
Plaintiff claims in his complaint that the Board took this action
even though his application (which, as previously noted, was not
completely accurate) and all the proof reflected that there was no
contemplated change of the use of his property for general
commercial purposes and there was no anticipated change that would
increase traffic on Highway No. 5 as a result of the requested
rezoning. Plaintiff did not pursue the matter in state court.
On March 20, 1995, plaintiff filed this lawsuit, asserting
that the City's requirement of a dedication of real property as a
condition of rezoning for continued use identical to the non-
conforming use violates the Fifth and Fourteenth Amendments to the
United States Constitution, and violates Article 2, § 22 of the
Arkansas Constitution. Plaintiff seeks an injunction to rezone the
property in accordance with "C-3" zoning, without the dedication to
the City of any property rights, as -well as punitive damages and
attorney's fees.
On October 1, 1995, after this Court ruled in favor of the
City on its motion to dismiss but prior to issuing a ruling on
plaintiff's motion to alter judgment, plaintiff entered into a
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A-5
written lease agreement with his son whereby he would receive 10%
of the net profits of the property, which amounts to well over
$7,000 per year.
II. Conclusions of Law
A.
As previously noted, the Eighth Circuit found that the City's
staff appeared to base its condition for rezoning on a concern that
a different, heavy traffic -producing business could be erected on
the property if rezoned. Goss, 90 F.3d at 310. Relying on Dolan
V. City of Tigard, 114 S.Ct. 2309 (1994) ("Dolan"), the Eighth
Circuit remanded to this Court for development of the record with
respect to the existence of the required nexus or, if a nexus
exists, whether the demanded dedication bears some rough
proportionality to the projected impact of the proposed rezoning.
Id. The Court has carefully considered the matter and concludes
that there exists the required nexus between the rezoning to "C-3"
and the requested dedication but that the City has not established
that the condition bears "rough proportionality" to the projected
impact'of the plaintiff's request.
1. --
There is no question that there exists a nexus between the
demanded dedication and the City's concern that a different, heavy
traffic -producing business could be erected on plaintiff's property
if rezoned and later result in the City Treasury having to pay
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