Bankoff v. Board of Adjustment of Wagoner County
| Decision Date | 31 May 1994 |
| Docket Number | Nos. 69586,78146,BROWNING-FERRI,INC,s. 69586 |
| Parties | In the Matter of the Application of Julius BANKOFF for a Conditional Use Permit, Plaintiff/Appellee, v. BOARD OF ADJUSTMENT OF WAGONER COUNTY, Defendant/Appellant, David Williamson, Nick Robson, Jim Vestal and the Wagoner County Citizens for a Cleaner Environment, Intervenors/Appellants., a Delaware Corporation, Plaintiffs/Appellee, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF WAGONER, Defendant/Appellant, David Williamson, Nick Robson, Jim Vestal and the Wagoner County Citizens for a Cleaner Environment, Intervenors/Appellants. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Wagoner County; Robert A. Layden, Judge.
Appellee Bankoff applied for a conditional use permit for a proposed sanitary landfill. The application was denied by Appellant (Board of Adjustment of Wagoner County). The district court reversed and Board appealed. In the interim, the county amended its zoning ordinance so that Bankoff's proposed use would no longer qualify as a permitted use. We remanded for an initial determination as to whether the after-enacted
legislation rendered the controversy moot. On remand, the case was consolidated with Bankoff's district court challenge as to the after-enacted legislation. The district court held that Bankoff had sufficient notice of the zoning amendment, but that he had a vested right such as would preclude application of the amendment as to the permit request.
JUDGMENT OF TRIAL COURT AFFIRMED BUT REMANDED WITH INSTRUCTIONS.
Joseph R. Farris, Jody R. Nathan, Michael A. Conger, Feldman, Hall, Franden, Woodare & Farris, Tulsa, for plaintiff/appellee.
William Hunter Dodson, District Attorney, Michael McEver, Monty Strout, Asst. Dist. Attys., Wagoner, Charles William Shipley, Blake K. Champlin, Shipley & Inhofe, Tulsa, John L. Boyd, Robert J. Nichols, Boyd & Nichols, Tulsa, for defendant/appellant.
Rehearing is granted and opinion of this Court issued June 16, 1992 is WITHDRAWN.
Numerous issues are presented for our determination from these consolidated cases. Generalized and respectively considered they are: 1) whether a zoning amendment enacted after the first appeal was filed renders the denial of Appellee's (Julius Bankoff) conditional use permit (CUP) and subsequent appeal of that decision moot; 2) whether the trial court erred in its application of the standard of review; and 3) whether Appellant (Board of Adjustment of Wagoner County) acted improperly in denying Bankoff a conditional use permit. We answer questions one and two in the negative and question three in the affirmative.
On March 3, 1986, Julius Bankoff applied to the Wagoner Metropolitan Area Planning Commission for a conditional use permit to operate a sanitary landfill on a tract of real property located in Wagoner County, Oklahoma. The Board of Adjustment for Wagoner County (Board) denied the permit by a vote of five to zero on April 22, 1986. Bankoff appealed the Board's decision to the District Court. Prior to trial, landowners and residents (Intervenors) filed a Motion to Intervene which was granted. After a de novo non-jury trial, the trial court found the Board's decision was arbitrary and capricious, reversed the Board's denial and ordered the Board to work with Bankoff to prepare a CUP setting forth appropriate conditions for the operation of a solid waste disposal facility in accordance with the Wagoner County Zoning Ordinances.
Both the Board and Intervenors appealed the trial court's ruling (Sup. Ct.Case No. 69,586), contending the court erred in finding the decision of the Board was not supported by the evidence, was unreasonable, contrary to law, and arbitrary and capricious, and that the judgment, reversing the Board's decision was against the clear weight of the evidence. Further, they alleged the court erred in its position on burden of proof for not requiring Bankoff to prove compliance with Section 6.3.2.1 of the city ordinance.
While that appeal was pending, the Board of County Commissioners of the County of Wagoner (Commissioners) amended the Wagoner County Zoning Ordinance, the effect of which, if applicable, rendered moot Bankoff's application for a CUP and subsequent proceedings. The Board and Intervenors filed a Motion to Dismiss in light of the amendatory provision and its effect on Bankoff's appeal. Consequently, we remanded for an initial determination of the effect of the amendment. 1
Meanwhile, Bankoff, represented by its lessee, Browning-Ferris Incorporated (BFI), filed suit in district court attacking the validity of the zoning amendment. Intervenors were again permitted to intervene. Bankoff/BFI moved the cases be consolidated which motion was granted by the trial court.
On August 6, 1991, the trial court, pursuant to our directions, made the findings of fact and conclusions of law. Among other things, the court found that at the time Bankoff filed his application for a CUP to operate Pine Meadows Landfill, the zoning regulations in effect permitted that use in such an agriculturally zoned area. Also that BFI was then operating the nearby (across the street) 51st Street Landfill and had been doing so since 1979. The district court had reversed the denial of Bankoff's application and that decision was appealed by Intervenors. Further, the Board adopted the zoning amendment less than 20 days after BFI obtained a permit from the Oklahoma State Department of Health to operate the proposed Pine Meadows Landfill.
The court concluded that Bankoff/BFI had a vested right in the operation of the landfill; that Bankoff/BFI had done everything legally possible to obtain the CUP; that the court order permitted the operation; that the Oklahoma State Department of Health had issued its permit authorizing the operation; and, that BFI had expended a substantial investment toward the operation. Moreover, the trial court determined that Bankoff/BFI was not precluded from seeking declaratory relief even though administrative remedies had not been exhausted. Further, the present appeal was not rendered moot by the amendment because Bankoff/BFI had a vested right to the use of the property and therefore, the zoning amendment was inapplicable as to Bankoff's application. The trial court also decided the Appellants were estopped to assert the requirement of "actual use" in that Bankoff/BFI was so prevented from going forward given the automatic stay imposed on it. 2
Questions concerning the retroactive application of zoning amendments have often been before the courts. It is axiomatic that under ordinary circumstances a zoning enactment cannot be applied retroactively to require destruction of an existing structure or a substantial change in an existing lawful use of property. 3 It is recognized, however, that a property owner does not have a vested interest or right in the continuation of an existing zoning classification so that his mere hope of developing the land in a particular way in the future will not be protected against later zoning amendments. Circumstances may occur, however, which will give rise to judicial recognition of a property interest sufficient to protect the owner's intended use from the reach of an otherwise applicable amendment to the zoning classification. In drawing that line between a landowner's hope for the contemplated future development of his land and an interest which the courts will recognize as vested and therefore protected, several judicial tests have evolved.
Most courts hold that while a landowner will not ordinarily be immune from a zoning change if he has done nothing more than obtain a permit from the licensing authority, he will be protected if he has made substantial expenditures in reliance thereon, or has committed himself to his substantial disadvantage in reliance on the permit or zoning provisions before the amendment went into effect, even though no construction has begun. 4
Other courts, without rejecting the general rule recognizing vested interests, have also established a "balance of equities" test as an alternative means of weighing and determining the respective interests of the property owner and zoning authority. 5
Under both tests the courts give consideration to the good faith of the landowner as well as the substantiality of the landowner's reliance on the existing zoning, and will protect his interest under either theory where he has made substantial expenditures or committed himself to a substantial disadvantage in reliance thereon. The conduct of the licensing board, particularly insofar as considerations as to whether the zoning change enacted was the result of maliciousness or if it was intended and directed toward the particular landowner and his intended use, is also a factor considered by the courts.
Some jurisdictions have noted that if there is evidence of bad faith, delaying tactics, prejudice or reliance, a court will apply the law as it existed at the time of application. In Marmah, Inc. v. Greenwich, 6 the Supreme Court of Connecticut resolved that given the circumstances, "it would be inequitable to allow the changed building zone regulations to act as a bar ... where the trial court reasonably concluded that ... the commission failed to provide proper reasons for denying the site plan application, and that the reasons that were provided were not substantiated by the evidence before the commission." Marmah is analogous to our case. Both cases involve zoning ordinances where an applicant's request was denied and there was subsequently a determination by the trial court that the denial was improper and there was a subsequent amendment to the zoning ordinance which would prevent the proposed use if applied to the...
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