Glasgow v. Beaty, 43303

• Decision Date: 14 July 1970
• Docket Number: No. 43303,43303
• Parties: Donald R. GLASGOW and Charles A. Shadid, Plaintiffs in Error, v. Richard A. BEATY, Acting Superintendent, B. D. Eddie, et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 75

476 P.2d 75

Donald R. GLASGOW and Charles A. Shadid, Plaintiffs in Error, v. Richard A. BEATY, Acting Superintendent, B. D. Eddie, et

al., Defendants in Error.

No. 43303.

Supreme Court of Oklahoma.

July 14, 1970.

As Corrected Nov. 9, 1970.

Rehearing Denied Nov. 10, 1970.

Appeal from the District Court of Oklahoma County; A. P. Van Meter, Trial Judge.

Refusal by municipal administrative officer to issue an occupancy permit was appealed to Board of Adjustment of municipality which granted a variance excepting premises from strict enforcement of a zoning ordinance which required off street parking as a condition for permitted use. Decision by Board of Adjustment, on trial de novo in district court, was reversed and variance denied. Owner and tenant of premises involved appeal. Affirmed.

Shadid, Black & Shdeed, and McClelland, Collins, Sheehan, Bailey & Bailey, Oklahoma City, for plaintiffs in error.

Barefoot, Moler, Bohanon & Barth, by Edward H. Moler, Oklahoma City, for defendants in error.

McINERNEY, Justice.

The premises here involved are zoned as 'F' classification which is commercial. Plaintiffs in error are respectively a tenant leasing part of a one story structure and the landlord. In concert they sought a variance before the municipal board of adjustment after denial by the municipality of an occupancy permit. The occupancy permit was initially denied on the ground use by the tenant was operation of a restaurant business serving beer, without providing one off space parking space for each 200 square feet of floor space as required by the applicable zoning ordinance establishing F Commercial zoning, i.e., Chapter 10, § 13. 10.03(2), Revised Ordinances of Oklahoma City.

Plaintiffs in error were respondents below and will be referred to here as plaintiffs in error or by name. The municipality will be referred to as such and those who appeared to resist granting of a variance will be referred to as protestors.

We are concerned here only with the premises which Mr. Glasgow rents from Mr. Shadid, which is not the entire structural unit. The appeal is briefed on three propositions, the first of which is a broad assertion of error in the district court judgment as contrary to law, contrary to the evidence and as being unsupported by any evidence. Under this proposition is presented first the contention that the present use is a nonconforming use and therefore exempted from application of the ordinance; second that enforcement of the ordinance as to these plaintiffs in error constitutes a denial of equal protection of the law, and, lastly, that plaintiffs in error have complied with the ordinance.

In respect to the first contention under Proposition I, no serious effort was made to establish a nonconforming use and no such nonconforming use was established. The building on the date of purchase by Shadid was divided into three areas, and those basic divisions remain. The area rented to Mr. Glasgow is the south area, and the only evidence adduced concerning its use prior to acquisition of the property by Mr. Shadid in 1966 discloses a use for storage and warehousing by a neighborhood florist. The cause was not tried before the district Court on the thory of nonconforming district court on the theory of nonconforming use cannot be considered on appeal. A nonconforming use is not an unlawful use but is a use made lawful by granted variance, and otherwise unlawful.

The second contention under Proposition I urges denial to plaintiffs in error of equal protection of the laws. The record relates testimony of witnesses who made vague references to other commercial operations in the zoned area being conducted without compliance with off street parking requirements. Plaintiffs in error did not adduce evidence calculated to show any arbitrary or capricious act in enforcement of the controlling ordinance. The Witness Barbour appearing in behalf of plaintiffs in error stated that by area less than ten per cent of the commercially occupied premises in the vicinity furnished the requisite parking facilities and that testimony was unchallenged on cross-examination. Protestors adduced proof that at least three nearby commercial establishments did furnish requisite parking facilities. Existing uses, similar or dissimilar, in violation of zoning ordinance or by virtue of a granted variance thereunder will not entitle an applicant to a variance. Prior exceptions are not controlling. Ill-advised or illegal variances do not furnish grounds for repetition. Otherwise one variance would sustain, if not compel, others and nullification of the general regulation would result. Nullification of zoning is a legislative function and beyond the power of the board of adjustment. McQuillin on Municipal Corporations 3rd Ed., § 25.173. The trial court made no finding on this issue but the evidence does not establish unjust discrimination as a matter of law. Zoning ordinances do not classify with perfect justice. Zoning authoritites are given power to alleviate unusual hardship by granting variances. The...