Higginbotham v. City of the Village

• Decision Date: 11 April 1961
• Docket Number: No. 38983,38983
• Citation: 361 P.2d 191
• Court: Oklahoma Supreme Court
• Parties: John W. HIGGINBOTHAM, Mrs. Erwin Akin, O. J. LaFevers, Sylvanus G. Felix, Floyd A. Harrison, Mary F. Garrett, and R. L. Bass, Plaintiffs in Error, v. CITY OF THE VILLAGE, Oklahoma; Eugene L. Bumpass, City Manager-City Clerk of said City; Fred W. Blagg, Mayor and City Councilman of said City; Walter Wigley, Building Superintendent of said City; and Doctor O. Alton Watson, Defendants in Error.

Page 191

361 P.2d 191

1961 OK 78

John W. HIGGINBOTHAM, Mrs. Erwin Akin, O. J. LaFevers Sylvanus G. Felix, Floyd A. Harrison, Mary F Garrett, and R. L. Bass, Plaintiffs in Error, v. CITY OF THE VILLAGE, Oklahoma; Eugene L. Bumpass, City Manager-City Clerk of said City; Fred W. Blagg, Mayor and City Councilman of said City; Walter Wigley, Building Superintendent of said City; and Doctor O. Alton Watson Defendants in Error.

No. 38983.

Supreme Court of Oklahoma.

April 11, 1961.

Syllabus by the Court

1. After an original and comprehensive zoning ordinance has been adopted and become effective, and an application is filed to rezone a cartain tract, the legislative body of a muncipality may enact a valid rezoning ordinance even though the Zoning Commission of the municipality did not give official notice of the hearing before the Zoning Commission.

2. Our statutes do not require municipalities to have separate, written, comprehensive zoning plans to validate a zoning ordinance.

3. When the validity of a legislative classification for zoning purposes is fairly debatable, the legislative judgment must be allowed to control and this Court will not substitute its judgment for that of the legislative body.

Appeal from the District Court of Oklahoma County; Clarence M. Mills, District Judge.

Action to enjoin issuance of building permit for construction of shopping center under ordinance of the City of the Village which changed zoning classification from residential to business use. From judgment for defendants, plaintiffs appeal. Affirmed.

Felix, Griffin, Bowman, Templin & McIntyre, Oklahoma City, for plaintiffs in error.

Wayne Quinlan, Oklahoma City, for defendants, City of The Village, Oklahoma; Eugene L. Bumpass, City Manager-City Clerk of said City; Fred W. Blagg, Mayor and City Councilman of said City; and Walter Wigley, Building Superintendent of said City.

Bulla, Melone, Meister & Sheehan, Oklahoma City for defendant, Dr. O. Alton Watson.

IRWIN, Justice.

One of the defendants in error, O. Alton Watson, is the owner of a tract of land located at the northwest corner of the intersection of Britton Road and Waverly Avenue in the City of the Village. This is an action to enjoin the City of the Village, its officers and employees from issuing any building or occupancy permit applicable to 'B-1' Local Commercial Zoning on the tract and to enjoin O. Alton Watson, his agents, attorneys, contractor and assigns from applying for or receiving any building or occupancy permit applicable to 'B-1' Local Commercial Zoning, and from commencing any improvement on the tract or from using it for any purposes other than for 'A-1' Single Family Dwelling purposes.

Judgment of the trial court was in favor of the defendants and plaintiffs appeal. The parties will be referred to as they appeared in the trial court.

On May 20, 1959, at the request of defendant Watson, the City of the Village annexed the tract in question and the tract automatically became zoned for 'A-1' Single Family Dwelling purposes. On May 26, 1959, Watson filed an application with the City to rezone the tract from 'A-1' single family to 'B-1' local commercial. Notice was published by the City that the application was filed and that it had been set for hearing on June 16, 1959, at which time action would be taken by the City and that all interested parties might appear and be heard.

The application was referred to the Planning Commission and without a published notice that it would consider it, the Planning Commission passed a motion to rezone the tract from 'A-1' to 'B-1'. Thereafter, the City pursuant to its published notice, conducted a public hearing, heard various protestants and adopted Ordinance No. 116, which rezoned the Watson tract from 'A-1' single dwelling to 'B-1' local commercial. Plaintiffs subsequently brought this action.

We will first consider plaintiffs' contention that the rezoning ordinance is invalid for the reason the Planning Commission did not give notice before it passed the motion to rezone the tract. In this connection, plaintiffs contend that notice of hearing was not given and that the meeting was private; that they and the public had no opportunity to know and did not know of such hearing and were not able to protest; that public notice and hearing were necessary before the Planning Commission could act and since neither was had, Ordinance No. 116, based upon the action and report of the Planning Commission, is invalid. Plaintiffs cite Title 11 O.S.1951 §§ 406 and 423, and also Ordinance No. 49 and 54 of the City.

Section 406, supra, provides for public hearings by the Zoning Commission, which in this instance is the Planning Commission, after due and proper notice prior to its final report, with its recommendations to the legislative body (City Council) on the original and comprehensive zoning ordinance. However, the zoning ordinance in question is not an original and comprehensive zoning ordinance but a rezoning ordinance. Although Title 11 O.S.1951 § 405, does require official notice and public hearings before the legislative body (City Council) of a municipality can amend or repeal its zoning ordinance, Section 405 or 406, do not require the Zoning Commission (Planning Commission) to give official notice before it passes upon an application to rezone a tract. Nor do we find any provision in Sec. 423, supra, or ordinances 49 and 54, which require official notice before action can be taken by the Planning Commission in matters pertaining to rezoning.

Plaintiffs rely on Makrauer v. Board of Adjustment of City of Tulsa, 200 Okl. 285, 193 P.2d 291; and Voight v. Saunders, 206 Okl. 318, 243 P.2d 654, to sustain their theory. These cases are distinguishable and not applicable to the facts under consideration. Those cases involve rezoning ordinance enacted by the City of Tulsa (the legislative body) and not the Planning Commission, without official notice and public hearing which is in direct contravention of the statutory provisions and the City Charter of Tulsa. In the instant case, the legislative body (City of the Village) gave official notice and had a public hearing before consideration and adoption of the rezoning ordinance in question.

Inasmuch as no official notice was necessary before the Planning Commission could pass upon the rezoning application, we can not sustain plaintiffs' contention that the rezoning ordinance was invalid because of failure of the Planning Commission to give official notice.

We will now consider plaintiffs' contention that the rezoning was not made pursuant to a comprehensive plan as required by Title 11 O.S.1951 § 403. In this connection plaintiffs contend the City should have a written comprehensive plan in addition to the zoning ordinance and in support thereof cite cases from other states involving amendatory ordinances and are cases involving what is known as 'spot zoning'. Plaintiffs do not cite nor has independent research disclosed any Oklahoma cases holding that it is necessary to have a separate, written comprehensive plan or document, and we do not construe the cases cited by the Plaintiffs to so hold. However, we believe the case of Kozesnik...