## Facts

- The City of Stuttgart, Arkansas adopted Ordinance No. 277 and Ordinance No. 386 creating a fire zone and prohibiting construction of non-fireproof buildings within that zone.
- The ordinances contained no variance, exception, or permitting mechanism allowing non-fireproof construction in the fire zone.
- The city council nevertheless adopted a resolution purporting to grant Seifert and Mahle a permit to construct a non-fireproof building within the fire zone.
- Seifert and Mahle constructed the non-fireproof building pursuant to the council resolution.
- Neighboring property owners, including Meyer, owned property in the fire zone and alleged the building increased fire risk and threatened damage to their property.
- The property owners sought equitable relief, requesting a mandatory injunction requiring removal of the nonconforming building.

## Issues

1. Whether a city council resolution could validly authorize construction of a non-fireproof building in a fire zone where the governing ordinances absolutely prohibited such construction and provided no exception process.
2. Whether a court of equity may enjoin maintenance of a structure erected in violation of a penal municipal ordinance when the violation threatens probable damage to neighboring property owners.

## Decision

- The Arkansas Supreme Court held the council’s purported permit was invalid because it conflicted with controlling ordinances that contained no authority for exceptions or permits.
- The court held equity could enjoin the unlawful building’s maintenance despite the ordinance’s criminal penalties, where neighboring owners showed probable property damage from the increased fire hazard.
- The court reversed the chancery court’s refusal to grant injunctive relief to the extent necessary to protect the neighboring property owners, and otherwise affirmed.

## Legal Principles

- A municipality cannot, by resolution, create an exception to an ordinance that contains an absolute prohibition and provides no mechanism for variances or permits.
- When an ordinance is enacted under general statutory authority and the ordinance itself supplies no exception procedure, ad hoc municipal permission inconsistent with the ordinance is ultra vires and ineffective.
- Equity may restrain conduct that violates a penal municipal ordinance when the violation threatens substantial, probable injury to private property rights and criminal enforcement is an inadequate remedy.
- Neighboring property owners may obtain injunctive relief to prevent continuation of an unlawful use that increases a risk of destructive harm (such as heightened fire danger) to adjoining property.

## Conclusion

The court invalidated a city council resolution purporting to permit a non-fireproof building in a fire zone contrary to absolute prohibitions in municipal ordinances, and held that neighboring property owners could obtain an injunction to abate the unlawful structure when its continued presence created a probable risk of property damage notwithstanding available criminal penalties.


Meyer v. Seifert, 216 Ark. 293 (1949)