On September 5, 1996, Bell filed suit against the city based on two ordinances passed by the city involving paving.

On October 23, 1995, an ordinance was added under 1153.01A of the city of Union zoning code to add a new paragraph number nine. This paragraph states that all off-street parking facilities . should be paved with asphalt, concrete, brick, paving block or other similar hard surface material; gravel and other loose stone shall not be considered paving. In addition, this does not require paving of driveways or other off street parking areas of agricultural residences and facilities.

Ordinance 1037 was also added to toe city's zoning code definition section stating that "paving" was any hard surface material such as -asphalt, concrete, brick, paving block, but not, specifically, gravel or other loose stone material.

According to City Manager John Applegate, the City of Union has required "paving" of off-street -parking areas since 1973. "The new definition just made it clear what 'paving' meant," he said.

He added that, for years, little had been done to force the issue. But the city began getting complaints in the late 80s and many more in the early 90s. "It was getting out of hand, and we had to start cracking down," Applegate said.

He explained that people were confused and the council felt that the new legislation, adding definition, would only make it clearer for people. Thus the October 23, 1995 legislation passed by council.

Applegate additionally asked council for a policy statement at that time. To remove any possible areas of favoritism or discrimination, council adopted the following policy: violation notices would be sent out to all who were in noncompliance of the code; for those whose property did not comply, there were allowances for exemptions and extensions of time.

Exemption appeals are heard by the Board of Zoning Appeals, a board-comprised of three appointed members and two elected council people. Each case is decided on its own set of individual circumstances.

People requesting extensions have been granted them. These range from 1-4 years based on individual circumstances.

According to city statistics, 17 homeowners have already come into compliance, 14 have been granted exemptions, 31 are still on extension for future compliance and 17 are still in non-compliance (these have neither applied for an exemption or extension).

"Everyone who applied for an exemption who had a gravel driveway before 1973 zoning ordinance was passed has been granted that exemption," Applegate affirmed.

He also noted that the old part of town was platted before 1816. No effort he said, was made to force owners of the old section of town to pave the gravel and dirt drives that had been that way for over 180 years.

To his knowledge, Applegate said, Bell was sent the usual noncompliance notice but had neither applied for an exemption nor an extension.

Bell's view of the situation leading up to the lawsuit differs from that of Applegate. While he does not dispute that the most recent changes in zoning code ordinances clearly define what paving is, he does dispute the legality of the original 1973 law requiring paving and the new legislation based on it. "The 1973 ordinance does not address that (paving)," he said. "It discusses unusable portions of off street parking but doesn't say anything about the usable portion."

He admits that he did not apply for an exemption or extension after receiving the non-compliance letter. "After I looked deeper," he said, "I found they had made this retroactive."

Bell's house was built in the late 50's and originally had paved drive. Former owners had converted the garage to a family room, and an unattached garage was added in 1973 with a gravel drive. "But it was done several months after the 1973 ordinance went into affect apparently," Bell added.

All this occurred before Bell owned the property.

Both Bell and the city of Union will have to wait until the judge reads their petitions and rules on the legalities involved.