Lakewood Development Co. v. Oklahoma City, 47101

• Decision Date: 25 March 1975
• Docket Number: No. 47101,No. 2,47101,2
• Parties: LAKEWOOD DEVELOPMENT COMPANY, a corporation, Appellee, v. The OKLAHOMA CITY, a Municipal Corporation, Appellant
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 23

534 P.2d 23

LAKEWOOD DEVELOPMENT COMPANY, a corporation, Appellee, v. The OKLAHOMA CITY, a Municipal Corporation, Appellant.

No. 47101.

Court of Appeals of Oklahoma, Division No. 2.

March 25, 1975.

Released for Publication by Order of Court of Appeals April 17, 1975.

McClelland, Collins, Sheehan, Bailey, Bailey & Belt, Oklahoma City, for appellee.

Walter M. Powell, Municipal Counselor, Tom B. McGee, Asst. Municipal Counselor, Oklahoma City, for appellant.

BRIGHTMIRE, Judge.

The City of Oklahoma City appeals from a judgment granting Lakewood Development Company equitable relief based on a finding that the city council's action in refusing to rezone certain property from residential to commercial was 'arbitrary and capricious' which in effect unconstitutionally deprived plaintiff of its property without due process of law.

Applicant owned Lakewood Shopping Center located on busy May Avenue in Oklahoma City. After 23 successful years of operation the owner wanted to expand the shopping facility to include eight lots adjoining it across a side street which were acquired through the years--two in 1952, the same year the shopping center was built. Because the lots were zoned for residential use plaintiff had to obtain a special permit from the city in order to use them for supplemental off-street center parking. Nine years later, in 1961, Lakewood Development Company began buying houses behind the parking lot and by 1973, it had purchased six houses and was ready for the expansion.

Accordingly the development company applied to the city for a rezoning classification of the eight lots from 'A' Single Family Dwelling District to 'E' Local Commercial District. Granting of the application was recommended by the planning commission staff, unanimously approved by the planning commission, but rejected by the city council on a vote of 4 to 3, resulting in this court action.

After hearing evidence, the trial court found and held that the city council's action was 'arbitrary and capricious . . . (in) that (the rezoning) denial had no substantial relation to the public health, safety, morals or general welfare'--a conclusion concerning which there can be no fair dabate.

City here seeks to reverse the decree on the basis of two propositions of error: (1) plaintiff failed to prove pertinent ordinances, and (2) the evidence was not sufficient to support a finding that the city's action was arbitrary, capricious, unreasonable or that it was anything other than 'fairly debatable.'

First in regard to plaintiff's failure to put a copy of the pertinent ordinances in evidence we mention that it is necessary to discuss the proposition only from the standpoint of the 'E' local commercial one because the record discloses that the 'A' residential ordinance was attached to plaintiff's petition and the city stipulated to its being considered in evidence. Since only the 'E' local commercial ordinance is not in evidence, we need only determine if such proof was essential for the relief sought and if not, whether city has shown any prejudice resulting from the omission.

Plaintiff in its petition asked that the property in question be zoned for 'E' local commercial use. Both parties used the terms 'E Commercial' and 'A Residential' in referring to relevant zoning classifications during examination of witnesses and argument to the court as though each understood fully what they were referring to. At the close of plaintiff's evidence city demurred to it for the sole specific 'reason that they (sic) have not proven that they cannot put their property to a reasonable use under its existing zoning classification; That the denial by the City Council of the zoning is fairly debatable issue . . ..' If indeed city thought for some reason the text of the ordinance should have been in evidence it declined to articulate it within the hearing of the court. As a matter of fact city seemed fully able to argue its position without either referring to suggesting a need for the absent material.

We of course agree with the city that courts may not take judicial notice of the provisions of municipal ordinances. Drake v. Tims, Okl., 287 P.2d 215 (1955); Barton v. Harmon, Okl., 221 P.2d 656 (1950). But we disagree that under the circumstances of this case it was necessary for the full text of the 'E' local commercial ordinance to be before the court in order for it to hold that plaintiff should be allowed to build a commercial building on the property 'in compliance with the 'E' Local Commercial Zoning District under the ordinances of the City of Oklahoma City.'

The only reason city gives for saying the absent ordinance was fatal is that the parking space potentially available for plaintiff's proposed building program does not satisfy the requirements set out in the ordinance. Clearly, however, such uneasiness is speculative, premature and irrelevant to the decisive issue below. Whether the proposed construction can ever meet the standards of the fire department, or health department, or whether plaintiff will be able to comply with parking, height, or screening requirements of the ordinance must remain for future determination. At this stage the issue is whether the property lies within what should be an 'E' commercial zone--not whether plaintiff has complied or can comply with the requirements of such zoning ordinance. This point, by implication at least, seems to have been recognized by the Oklahoma City planner when he testified that the parking situation would be settled when requests for building permits were acted on--and that if indeed the front two lots are needed for existing shopping center parking, plaintiff will then have to revise its building plans to conform to whatever accommodations the remaining six lots will provide regarding business structures and parking facilities.

City's next contention--that the trial court was wrong in concluding that the city's legislative action was arbitrary, capricious and unreasonable--is premised primarily on a so-called 'fairly debatable' rule. This phrase or 'rule' has gained considerable popularity with out courts presumably as an aid to the judicial process, but which for want of meaningful definition seems merely to obscure further an already troublesome semantics...