Development Industries, Inc. v. City of Norman
| Decision Date | 29 March 1966 |
| Docket Number | No. 40811,40811 |
| Parties | DEVELOPMENT INDUSTRIES, INC., an Oklahoma Corporation, Plaintiff in Error, v. The CITY OF NORMAN, Oklahoma, a municipal corporation, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where the state statute authorizing the adoption of zoning ordinances by municipalities does not provide that a three-fourths vote of the city commission is necessary before an ordinance amending the zoning ordinances may be passed over the objection of the planning commission, and neither does the charter so provide, the city commission is unauthorized to place such restriction by ordinance upon the future exercise of its legislative function.
2. In the absence of an express statutory or charter provision to the contrary, a majority vote of a city commission is sufficient to enact an ordinance amending a zoning ordinance.
Appeal from the District Court of Cleveland County; Elvin J. Brown, Judge.
Proceeding for declaratory judgment that a certain proposed ordinance of the City of Norman, Oklahoma, was duly adopted, and for further relief based upon adoption of such ordinance. From judgment denying relief, plaintiff appeals. Reversed and remanded with directions.
Luttrell, Luttrell, Pendarvis & Livingston, Norman, for plaintiff in error.
Fielding D. Haas, Norman, for defendant in error.
This cause presents the question of whether or not a city commission under certain circumstances hereinafter stated may validly provide in one ordinance that the enactment of a subsequent amending ordinance may only be accomplished by the affirmative votes of three-fourths of the city commission.
The case arose as follows: The plaintiff in error as owner of certain lands in the City of Norman, which lands had been placed in an agricultural zoning classification, made application to the City Commission of Norman to transfer said property to a multi-family dwelling classification. The plaintiff's application was referred in due course to the City Planning Commission for its study and recommendation. Thereafter, the Planning Commission recommended that plaintiff's property be transferred not to a multi-family classification but to a single-family dwelling class. To this recommendation plaintiff refused to accede and re-urged its original application for a change of classification to multi-family dwelling. Thereafter the City Commission purported to enact, by the vote of four of the seven members thereof, Ordinance No. 1488, having for its purpose the transfer of plaintiff's property, as he requested, to a multi-family dwelling classification. The mayor and other officials of the city refused to consider said Ordinance No. 1488 as having been validly enacted, and plaintiff brought this action in the District Court of Cleveland County asking for a declaratory judgment of that court to the effect that said Ordinance No. 1488 was a valid and subsisting act of the legislative body of the City of Norman. The City of Norman contended, and the trial court apparently found, that said Ordinance No. 1488 was not validly enacted because it failed to receive a three-fourths vote of the membership of the city commission as required by the provisions of Section 440.4.1 of the comprehensive zoning ordinance of the City of Norman, hereinafter referred to as Section 440.4.1 of the Code, which provisions are hereinafter partially quoted and which, for the sake of simplicity and ease of study, have been arbitrarily divided into two separate paragraphs, as follows:
'* * * Any such amendment that has failed to receive the approval of the City Planning Commission shall not be passed by the City Commission except by three-fourths (3/4) vote.
'If a protest against such amendment be presented, duly signed and acknowledged by the owners of twenty (20) percent or more of the land within such area proposed to be altered, or by the owner of twenty percent (20%) or more of the area of the lots immediately abutting either side of the territory included in such proposed change, or separated therefrom only by an alley or street, such amendment shall not be passed except by the favorable vote of three-fourths (3/4) of the City Commission.'
'* * *'
From the judgment adverse to the plaintiff property owner in the trial court, this appeal was prosecuted within the time and in the form as required by law. The parties will be referred to by their trial court designations.
The plaintiff presents its assignments of error under the following three propositions, which shall be by us considered in that order.
At the outset, it should be noted that while the City of Norman has a charter, the same is silent insofar as authorizing the City Commission to enact zoning ordinances. The City Charter not expressly providing for zoning ordinances, the power to enact such ordinances is derived from legislative enactments. Application of Reynolds, Okl.Cr., 328 P.2d 441; Makrauer v. Board of Adjustment of City of Tulsa, et al., 200 Okl. 285, 193 P.2d 291. The zoning statutes are 11 O.S.1961, Secs. 401 to 425, inclusive. Upon examining these sections, we find that only one section, namely, Sec. 405, specifically mentions the necessity that three-fourths of the membership of the City Commission vote in favor of an ordinance amending a previously enacted zoning ordinance. We notice by said section that such three-fourths vote will only be required in the event twenty percent (20%) of the owners of land within the affected area, or abutting areas, file a written protest. It is, of course, a fact that no such protests were made to the adoption by the City Commission of the questioned Ordinance No. 1488, so therefore said Sec. 405 of the statutes is not applicable, and neither is the second paragraph of the cited portion of Sec. 404.4.1 of the Code of the City of Norman, which apparently is an adoption verbatim of Sec. 405 of the statute.
Plaintiff argues that the first paragraph of the cited Sec. 440.4.1 of the Code of the City of Norman, which provides in part,
'* * * Any such amendment, that has failed to receive the approval of the City Planning Commission shall not be passed by the City Commission except by three-fourths (3/4) vote.'
was invalid because it conflicted with a state statute prescribing the quantum of votes required for the passage of an ordinance. Plaintiff cites in support thereof 25 O.S.1961, Sec. 31, which is as follows:
'Words giving a joint authority to three or more public officers or other persons, are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority.'
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