City of Tulsa v. Swanson

• Decision Date: 28 November 1961
• Docket Number: No. 39296,39296
• Citation: 366 P.2d 629
• Parties: CITY OF TULSA, Oklahoma, a municipal corporation, Plaintiff in Error, v. L. L. SWANSON and Nina Swanson, husband and wife, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 629

366 P.2d 629

CITY OF TULSA, Oklahoma, a municipal corporation, Plaintiff in Error, v. L. L. SWANSON and Nina Swanson, husband and wife, Defendants in Error.

No. 39296.

Supreme Court of Oklahoma.

Nov. 28, 1961.

Syllabus by the Court

1. The municipal power to interfere by zoning regulations with the general rights of a landowner by restrictions placed upon the character of use of his property is not unlimited, and such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals or general welfare. (Royal Baking Co. v. Oklahoma City, infra).

2. When classification of property under a municipal zoning ordinance is challenged by the owner, it is the duty of the court to determine whether the restriction imposed upon the use of such property bears a reasonable relation to public interest, safety, morals, health and welfare, or constitutes an arbitrary, capricious, oppressive and unconstitutional exercise of the municipal legislative powers as conferred by the zoning statutes. Record examined and held: the judgment of the trial court declaring the zoning restriction unreasonable, so far as applied to the property in question, is not against the clear weight of the evidence. (Oklahoma City v. Barclay, Okl., 359 P.2d 237.)

Appeal from the District Court of Tulsa County; Kenneth Hughes, Judge.

Action by L. L. Swanson and Nina Mae Swanson, husband and wife, to permanently enjoin the City of Tulsa from enforcing certain restrictions imposed upon their property by the provisions of zoning ordinance No. 8804. From a judgment granting injunctive relief to the plaintiffs; the City of Tulsa appeals. Affirmed.

Charles E. Norman, Tulsa, for plaintiff in error.

Sanders & McElroy, by David H. Sanders, Tulsa, for defendants in error.

WELCH, Justice.

Following repeated unsuccessful attempts to secure from municipal authorities a reclassification of their land, L. L. Swanson and Nina Swanson, husband and wife, instituted this action to permanently enjoin the City of Tulsa from prohibiting a commercial use of their property which was then zoned in a single family residential district. While the action remained pending, the Tulsa Metropolitan Area Planning Commission proceeded, of its own accord, to 're-study' the surrounding land area, and thereafter, an amendatory ordinance No. 8804 was passed. By the terms of this ordinance the major portion of the property in question was re-zoned to a 'use district classification U3B'. This classification permits no commercial structures other than a professional office building which may not occupy more than 20% of the lot area and be more than one-story in height. The sole issue raised by the evidence adduced at the trial was whether zoning ordinance No. 8804, in so far as it specifically applies to the land in question, amounts to an unreasonable, arbitrary, capricious and oppressive limitation upon private rights so as to constitute, in its effect, the taking of plaintiff's property without due process of law. The trial court ruled in favor of the plaintiffs and permanently enjoined the city from imposing any restrictions on said land other than those defined in U3C classification. (The mentioned use, known as a 'special service district', permits the erection of a filling station.) From the judgment so entered the City of Tulsa has perfected the present appeal. Our continued reference to the parties will be by their names or designation below.

At issue is the correctness of the trial court's judgment. The proceeding before us is characterized as equitable in nature. Beveridge v. Harper & Turner Oil Trust, 168 Okl. 609, 35 P.2d 435, 440. The findings and conclusions of the trial court as to the unreasonableness of the municipal ordinance are not binding on this tribunal if the record discloses that the matter is 'fairly debatable' and that there may be a difference of opinion on the subject. In determining the question so presented we must primarily look to and examine the record in order to ascertain from 'the basic physical facts' whether the findings as made are consonant with or against the clear weight of the evidence. Oklahoma City v. Barclay, Okl., 359 P.2d 237; Fletcher v. Board of County Commissioners of Oklahoma County, Okl., 285 P.2d 183; Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38, 43, 7 A.L.R.2d 990, cert. den. 337 U.S. 939, 69 S.Ct. 1516, 93 L.Ed. 1744; Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842.

The validity of the municipal ordinance No. 8804 is not challenged in its general scope, but only in so far as it 'specifically applied' to the property in question. See Nectow v. City of Cambridge, supra; Royal Baking Co. v. Oklahoma City, 182 Okl. 45, 75 P.2d 1105.

The land involved in this litigation consists of two vacant lots located in Tulsa, Oklahoma, on the east side of South Yale Avenue and on the south side of 33rd Street. These lots, each 75 feet wide on the Yale side and 150 feet deep, cover the southeast corner of the intersection of Yale and 33rd Streets. Yale Avenue, a major artery of travel, is 44 feet wide and consists of 4 lanes which carry heavy vehicle traffic in both northerly and southerly directions. At the intersection of 31st Street and Yale Avenue there is a shopping area, known as the 'Highland Shopping Center', which extends south beyond the line of plaintiffs' lots. On the west side of Yale, proceeding southward from the mentioned intersection, there are located the following business establishments: (a) a veterinarian's office and an animal hospital; (b) a green stamp store; (c) an all-night coin-operated laundry; (d) a liquor store; (e) a restaurant; (f) a laboratory; (g) a beer tavern; (h) a super market; (i) three filling stations; the southern most of these stations is situated directly across the street from the property belonging to the plaintiffs. On the east side of Yale, proceeding southward from the intersection of that street with 31st Street, there are found the following commercial establishments: (a) a barbecue stand; (b) a soft drink stand; (c) a dry cleaning establishment; (d) a liquor store; (e) a super market; (f) a private residence; (g) a nursery; (h) a private residence; (i) a florist shop and a greenhouse. The establishment last mentioned which occupies the northeast corner of the intersection of Yale and 33rd Street is located to the north of the land in question. To the east of plaintiffs' property there is a well-developed residential section. The houses immediately to the east of the lots in question face on Allegheny Avenue which is the...