ARKANSAS COURT OF APPEALS
 NOT DESIGNATED FOR PUBLICATION
DIVISION IV

CA03-462

December 10, 2003

DEAN TYRER and ANGELA TYRER AN APPEAL FROM CRAIGHEAD COUNTY

APPELLANTS CIRCUIT COURT

[NO. CIV01-698]

v.

HONORABLE WILLIAM LEE FERGUS,

ROBERT RYAN CIRCUIT JUDGE

APPELLEE

AFFIRMED

Josephine Linker Hart, Judge

This appeal is brought from a circuit court order declaring void a rezoning ordinance enacted by the City of Jonesboro. Appellants Dean and Angela Tyrer, owners of the rezoned property, argue that the circuit court erred in its ruling. We disagree and affirm.

Appellants own a 102-unit mobile home park on Aggie Road in Jonesboro. To the west of the park lies the Countrywood Addition, a subdivision of single-family homes. To the south and east of the park are fifty-two acres of undeveloped land that have heretofore been zoned R-1 (single family, medium density). On July 24, 2001, appellants entered into a real estate contract to purchase the fifty-two acres from the Mullis and the Sulfridge families, contingent on the city's rezoning the property to R-3 (multi-family, high-density). Appellants' plan was to expand their mobile home park to include another 193 units. On August 10, 2001, George Hamman, an engineer hired by appellants, applied to the city's Metropolitan Area Planning Commission (MAPC) to rezone the property to R-3. Hamman filed the application in appellant Dean Tyrer's name even though appellants had not yet purchased the property. The MAPC set a hearing on the application for September 11, 2001. Notice of the hearing was published in the August 28, 2001 edition of the Jonesboro Sun newspaper.

Because of the tragic events of September 11, 2001, the hearing was postponed until September 18. On that date, the MAPC denied appellants' rezoning request. Appellants appealed the MAPC's decision to the Jonesboro City Council, and a public hearing was held on October 15, 2001. Following the hearing, the Council approved the rezoning and adopted Ordinance No. 3324, which rezoned the fifty-two acres from R-1 to R-3.

On November 13, 2001, appellee Robert Ryan, who had spoken before the City Council in opposition to the rezoning, filed a petition in Craighead County Circuit Court to have Ordinance No. 3324 declared void. He alleged that the city had violated its own rezoning procedures because: 1) the application for rezoning was not filed by an owner of the property; 2) fourteen days' notice of the MAPC hearing was given when fifteen days were required; 3) proper signs were not posted on the property sought to be rezoned. Appellee also alleged that Ordinance No. 3324 improperly dealt with more than one subject, that its purpose was not clearly expressed in its title, that it did not contain the proper enacting language, and that the rezoning was arbitrary and capricious because it was not consistent with the city's future land-use plan. Appellee named the City of Jonesboro and various municipal officers as defendants, and appellants intervened in the action.

The trial court heard the case upon stipulations, exhibits, and arguments of the parties and found that the city had violated its rezoning procedures. The court also expressed concern that the language of Ordinance No. 3324 was insufficient, in part because its title purported to amend the city's general zoning ordinance, Ordinance No. 954, which had been repealed several months earlier. As a result of its findings, the court reversed the city's enactment of Ordinance No. 3324 and declared the ordinance void. Following a request by appellants for additional findings of fact, the court entered an amended order on January 28, 2003, finding that the above mentioned procedural flaws rendered the rezoning arbitrary and capricious. Appellants filed a timely notice of appeal from both orders.

Appellants' first argument is that the rezoning of their property was not arbitrary or capricious because it was consistent with the city's land-use plan and zoning ordinance and was compatible with uses in the surrounding area. These arguments seek review of the substance of the city's rezoning action. However, the trial judge expressly declined to review the merits of the city's decision; he ruled only that Ordinance No. 3324 should be voided due to various procedural and technical irregularities. Therefore, the question of whether rezoning was merited is not before us and will not be addressed. See Murphy v. City of W. Memphis, 352 Ark. 315, 101 S.W.3d 221 (2003); Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998); City of Fordyce v. Vaughn, 300 Ark. 554, 781 S.W.2d 6 (1989). The only issues cognizable in this appeal are: 1) whether the city failed to substantially comply with its own zoning procedures and 2) whether Ordinance No. 3324 was technically flawed.

As for the zoning procedures, the three relevant requirements of the Jonesboro Zoning Ordinance are: 1) that rezoning may be proposed by either the city council, the planning commission, or by a property owner or his legal agent (emphasis added), with "owner" being defined as "the property owner of record, according to the office of the Craighead County CircuitClerk"; 2) that notice of a MAPC meeting must be published fifteen days before the meeting; and 3) that a rezoning applicant must post signs on the property that is the subject of the application, with one sign for every 150 feet of street frontage, a minimum of one sign along each abutting street, and placement of signs along each abutting street in a manner that makes them clearly visible to neighboring residents and passers-by.1 Appellee argued to the circuit court that none of these requirements had been substantially complied with, and the circuit court agreed.

Appellants contend first that appellee was barred from making this argument in circuit court because he had not made it before the city council. We disagree. The circuit court action was in the nature of a de novo trial. The court did not review the city's judgment in rezoning the fifty-two acres but addressed the question of whether the city's action was ultra vires for failure to comply with its procedures. Although Arkansas law does not permit a de novo trial from a city's legislative zoning decision, Murphy v. City of West Memphis, supra, it does permits a de novo trial from other municipal planning decisions. See Ark. Code Ann. § 14-56-425 (Repl. 1998). In Goodall v. Williams, 271 Ark. 354, 356, 609 S.W.2d 25, 27 (1980), the supreme court distinguished between the types of judicial review permitted:

The issue tried by the circuit court in this case was not the wisdom of the city's rezoning decision but whether the city had failed to enforce and act in accordance with what amounted to its own statutes, i.e., its zoning procedures. Further, the city council may have been acting in a quasi-judicial capacity in reviewing the action of the MAPC. In any case, the circuit court did not review the city's legislative act, and a de novo trial was appropriate. That being so, appellee could raise arguments in circuit court that had not been raised at the city council. See Carmical v. McAfee, 68 Ark. App. 313, 7 S.W.3d 350 (1999). We therefore proceed to the merits of the case.

Because the trial court conducted a de novo proceeding, we will affirm unless the decision of the trial court is clearly erroneous. Nation v. Ayres, 340 Ark. 270, 9 S.W.3d 512 (2000). In zoning matters, a city government must substantially comply with its own zoning procedures. See generally City of Fordyce v. Vaughn, supra; Mings v. City of Fort Smith, 288 Ark. 42, 701 S.W.2d 705 (1986); Potocki v. City of Fort Smith, 279 Ark. 19, 648 S.W.2d 462 (1983); Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). The first question regarding these procedures is whether the city substantially complied with its requirement that a rezoning application be filed by an owner of the property. The city defines "owner" for this purpose as the record owner of the property. Appellants argue first that they were in fact owners of a portion of the property sought to be rezoned, but there is nothing in the record to support that, nor do appellants offer any basis for such a contention. In fact, the parties' stipulations state that, on December 13, 2001, the Mullis and Sulfridge families "conveyed the property involved herein" to appellants. Thus, the evidence shows that appellants became record owners of the subject property long after the August 10, 2001 application was filed.

Appellants also argue that, because they had executed a contract to purchase the property, they had equitable ownership in it and thus may be considered owners. Although a holder of an equitable interest in property may have standing to seek rezoning of it, see City of Little Rock v. Goodman, 222 Ark. 350, 260 S.W.2d 450 (1953), and 83 Am. Jur. 2d Zoning and Planning § 664 (2d ed. 2003), the city of Jonesboro expressly requires that a rezoning applicant be the record owner of the property. The application in this case was not filed by the record owner, and the city, having chosen to define the word "owner" in a particular manner, is bound by its decision. To hold otherwise would diminish the import of the city's definition and render it meaningless.

Appellants argue alternatively that they filed the application as the agents of the Mullis and Sulfridge families which, under the city's procedures, would have accorded them standing. However, the Mullis and Sulfridge families did not ask appellants to act on their behalf, nor did appellants purport to act on their behalf. Appellants acted on their own behalf, through their agent, for their own purposes.

Based on the above, we hold that the trial judge's finding that the ownership requirement was not substantially complied with is not clearly erroneous.2

Likewise, we agree with the trial court that there was no substantial compliance with the notice and signage requirements. The city requires fifteen days' notice of MAPC meetings. The notice given in this case was published only fourteen days out. The fact that the initially scheduled hearing was postponed does not cure the lack of timely notice, especially in light of the fact that no notice of the postponement was published. As for the signage requirement, signs notifying the neighborhood of the rezoning application were posted only inside the existing trailer park. This falls far short of the zoning procedures' mandate that signs be placed along abutting streets and be clearly visible to neighbors.

In light of the foregoing, we affirm the trial judge's decision to invalidate the rezoning ordinance. Our holding makes it unnecessary for us to address whether the ordinance itself, No. 3324, is technically flawed.

Affirmed.

Bird and Vaught, JJ., agree.

1 Although we do not have the text of the Jonesboro Zoning Ordinance in the record, the parties have stipulated to its provisions.

2 Appellants argue for the first time in their reply brief that, because the city's zoning procedures provide that rezoning "may" be proposed by a property owner, the city has discretion in whom it will permit to file an application. We do not recognize arguments made for the first time in a reply brief. Helena/West Helena Schools v. Hislip, 78 Ark. App. 109, 79 S.W.3d 404 (2002).