Trice v. City of Pine Bluff , 279 Ark. 125 ( 1983 )

Robert H. Dudley, Justice.

This is an appeal from convictions for violating a city zoning ordinance. The narrow issue involved is whether the ordinance was too vague to be enforced through criminal law. We hold that the ordinance did not give appellant fair warning in definite language that his acts were prohibited and we reverse the conviction. Jurisdiction is in this Court as the case involves the validity of a municipal ordinance as applied. Rule 29 (1) (c).

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

As a result, the city charged appellant in municipal court with five separate counts of “Violation of City Ordinance. ’ ’ He was convicted on all counts and appealed to circuit court. There, at the commencement of the consolidated trials, the circuit judge prophetically inquired of the city attorney as follows:

THE COURT: This is City appeal cases Number 82-137-1, Number 137-A-l, 137-B-l, 137-C-l and 137-D-l. Now, somebody tell me in j ust plain language, if it is in plain language, what the man is charged with. I assume, as I said before, that it has something to do with driving a truck in an area of the City that a truck is not supposed to be in.

MR. JONES: (City attorney) No, sir.

THE COURT: That’s not it.

MR. JONES: That is 137-D, truck driving —

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

MR. KEOUGH: (City attorney) Violation of Section 9 of City Ordinance 4807, the zoning ordinance of the City of Pine Bluff, uses permitted in an R-3 residential district.

The sufficiency of the charge is not questioned on appeal. One count, 137-D, was dismissed by the circuit court but appellant was found guilty on the other four counts. The convictions were had because on four different days a zoning administrator found the following: (1) “grass that needed cutting and some other items stored ... and a pile of lumber,” (2) “an 18 wheel tractor-trailer on the lot,” (3) “a pickup truck,” and (4) “another truck, approximately one ton.” The specific question before this Court is whether the ordinance gives a person fair warning in definite language that the following are prohibited: (1) allowing grass to grow too high and storing lumber, (2) parking a large truck, (3) parking a small truck, and (4) parking a medium truck.

Zoning ordinances may be judicially enforced by either civil or criminal proceedings. City of Mountain Home v. Ray, 223 Ark. 553, 267 S.W.2d 503 (1954). Civil enforcement, the most common form, is usually by actions for injunctions or declaratory judgments. In those civil actions, an ambiguous ordinance or one with a double meaning may be construed by the courts so that effect is given to the legislative intent. The rule for enforcement by criminal action is markedly different because there can be neither constructively created criminal offenses nor criminal offenses established by implication. International Harvester Co. v. State, 79 Ark. 517, 96 S.W. 119 (1906). Ordinances creating criminal offenses must be clear and unambiguous. In civil law we inquire into what the legislature meant but in criminal law we inquire into only what the statute means. Lewis v. State, 220 Ark. 259, 263, 247 S.W.2d 195, 197 (1952), citing Giles v. State, 190 Ark. 218, 78 S.W.2d 70 (1935). It is this difference that makes a criminal proceeding a poor vehicle for resolving a zoning dispute such as the one before us. Instead of seeking a declaratory judgment for the interpretation of the ordinance or an injunction against impliedly proscribed uses, the city sought to resolve this dispute by the process of a criminal action. Therefore, we examine the ordinance for vagueness, the standard for criminal statutes.

The standard by which we determine whether an ordinance is vague is whether the ordinance gives a person of average intelligence a fair warning in definite language of the prohibited act. Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1982). The material section of the ordinance is appended to this opinion. There is no warning in definite language that the ordinance in question created a criminal offense for allowing grass to exceed a certain height, or for storing lumber, or for parking trucks. The city’s argument tacitly recognizes that there was no warning in 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 or by implication would create the four criminal offenses. Although this argument might be valid in a civil action to determine permitted uses, see Ferguson v. City of Mountain Pine, 278 Ark. 575, 647 S.W.2d 460 (1983). it is irrelevant to the interpretation of criminal laws which are subject to strict guidelines of interpretation. Lewis v. State, 220 Ark. 259, 263, 247 S.W.2d 195, 197 (1952). Moreover, the following questions demonstrate the fallacy in this interpretation of the ordinance. For example, how tall is grass which is too tall? How much lumber, if any, can be stored? What, besides lumber, is prohibited from being stored? May an automobile be parked on one’s land? If so, why may an automobile be parked when a pickup truck may not? Quite obviously, the ordinance contains no written standard by which the questions can be answered. Logic dictates only one conclusion: that a zoning administrator and a judge decide what constitutes an offense without written standards. In Davis v. Smith, 266 Ark. 112, 118, 583 S.W.2d 37, 41 (1979), we stated:

In criminal cases, placing discretion in the hands of the police without prescribing any standards governing its exercise is another instance which renders a statute void for vagueness. Papachristou v. City of Jacksonville, supra [405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972)]____A law which, due to vagueness, leaves basic policy matters in the criminal law field to either policemen or judges on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application, is also impermissible. Grayned v. City of Rockford, supra [408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)]. A law that is so vague and standardless that it leaves judges or jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case fails to meet due process requirements. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). See also, Andrew Jackson, ex parte, 45 Ark. 158.

If an ordinance can be construed to create a criminal offense, not by its definite language, but merely according to a zoning administrator’s interpretation of that ordinance, we become a state governed not by laws but by administrators.

The city seeks to minimize this danger by placing reliance on the argument that appellant knew that in his application for a permit for a non-conforming use, he stated the garage would be used to park an automobile and knew the manner in which the city interpreted its own ordinance. Therefore, the city argues, he had fair warning. However, criminal offenses cannot properly rest upon what an application stated when that application does not form a part of the charge, or upon what the neighbors thought the ordinance meant or upon what warning an administrator gave based upon his own interpretation of the ordinance. The validity of the criminal provisions of the ordinance is determined by the language of the ordinance. That language is vague and the conviction must be reversed.

Reversed and dismissed.

Hickman and Hays, JJ., dissent.

APPENDIX

SECTION 9 R-3 RESIDENTIAL

A. General Description and Intent of District.

This District is intended for use in residential neighborhoods which meet one or both of the following criteria:

1. Lot sizes are generally smaller than those required in the “R-l” zone in area or dimension.

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

B. Permitted Uses

1. Single Family Dwellings

2. Accessory Uses and Buildings

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

4. Home Occupation

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

6. Office uses which comply with the following additional regulations and other city regulations.

C. Uses Permitted Upon Review and Approval of the Planning Commission

The Planning Commission may impose special conditions relating to such considerations as the site plan, screening or parking as a condition for approval of the following uses or any other uses it deems appropriate for the protection of the public health, safety and welfare.

1. Parks and Playgrounds

2. Day-Care Family Home

3. Rooming House

4. Cemetery

5. Public & Semi-public Uses

6. Golf Course

7. Tennis Courts

9. Public Elementary Schools and other educational institutions with curriculum equivalent to a Public Elementary School.

10. Churches (See Section 24-(M))

11. Garage Apartments (Occupied by Relatives)

12. Professional Office in a converted functionally obsolete single family residence.

13. Restaurant in a converted functionally obsolete single family residence.

14. Other uses deemed appropriate in the opinion of the Board of Zoning Adjustment which conform to the basic intent of this district and which can be demonstrated to be equal to or less intense than other permitted uses in this district.

D. Parking Requirements

Two (2) off-street parking spaces shall be required for duplexes and single family residences. Other uses shall provide parking in conformance with provisions of Section 23.

E. Height, Area and Structure Regulation

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

2. Space Regulations

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

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

c. Front Yard: A minimum of twenty-five (25) feet.

d. Side Yards: The minimum side yard shall be five (5) feet. The side yard on the street side of each corner lot shall not be less than twenty (20) feet.

e. Rear Yard: A minimum of twenty (20) feet.

f. Accessory Buildings shall be set back from any property line a minimum of five (5) feet.

g. Building Coverage: A maximum of forty-five (45) percent of the lot area.

3. Structure Regulations

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

F. Dimensions

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

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