McCurley v. City of El Reno

• Decision Date: 10 September 1929
• Docket Number: 18992.
• Citation: 280 P. 467,138 Okla. 92,1929 OK 306
• Parties: McCURLEY v. CITY OF EL RENO et al.
• Court: Oklahoma Supreme Court

280 P. 467

138 Okla. 92, 1929 OK 306

McCURLEY v. CITY OF EL RENO et al.

No. 18992.

Supreme Court of Oklahoma

September 10, 1929

Syllabus by the Court.

Where a city, intending to adopt, at the earliest practicable time, a permanent, comprehensive zoning ordinance, passes a temporary ordinance for the purpose of measurably controlling building during the interim, in order that the benefits of the proposed zoning ordinance may not be lost, and, when such temporary ordinance is attacked as unreasonable and arbitrary, this court will apply a liberal rule of construction, not only to such ordinance itself, but also to the power of the city council to promulgate the same.

Under section 4, c. 178, Sess. Laws 1923, the provision that such regulations, restrictions, and boundaries shall not be effective until after public hearing, and that 15 days' notice of the time and place of such hearing shall be published, and such public hearing shall not be had or action taken until the final report of such commission, does not prevent a city council from passing a temporary ordinance to measurably and reasonably control building operations until the comprehensive ordinance provided for in said chapter shall have been properly investigated and passed.

That part of section 10 of said act (Laws 1923, c. 178) setting forth that no provision thereof shall apply to any railroad or terminal company operates only as an exemption to such company in the construction and use of a building on its right of way for railroad or terminal purposes, and does not have the effect of permitting such company to lease its said premises to private individuals for the operation of a filling station thereon, and thereby exempt the premises from the provisions of a zoning ordinance covering that part of the city.

A building permit granted by a municipal corporation may be revoked within a reasonable time after issue, where the same has been granted through mistake of fact and in violation of the ordinances of the city, and where the permittee has not substantially changed his position by reason of such permit.

Commissioners' Opinion, Division No. 2.

Error from District Court, Canadian County; Wyley Jones, Judge.

Action by J. A. McCurley against the City of El Reno and others. Judgment for defendants, and plaintiff appeals. Affirmed.

A. G Morrison and A. L. Morrison, both of El Reno, for plaintiff in error.

J. N Roberson, of El Reno, for defendants in error.

BENNETT P. C.

The parties will be referred to as they appeared below. Plaintiff's petition alleged that he had been granted a permit to build a filling station on right of way of street railway company in El Reno; that, when he began to build, the city revoked the permit and caused plaintiff's arrest for violation of the zoning ordinance of said city, and caused his employees to cease work; that said Zoning Ordinance No 1061 was not passed as required by chapter 178, Sess. Laws 1923, and was void; that it was unreasonable and violated the state and federal constitutions. Plaintiff demanded permanent injunction. The answer is, in effect, a general denial. An agreed statement of facts is as follows:

That plaintiff leased from street railway company part of its right of way April 28, 1927; that a frame building permit No 268 was issued plaintiff April 26, 1927. May 13, 1927, the city, by letter, revoked said permit, because issued in error and in violation of Ordinance 1061. May 12, 1927, plaintiff had two men, and on May 13th three men, work a half day on foundation; that Ordinance No. 1061 was passed and approved April 12, 1927, and was regularly published two days later, and provided that it became effective upon publication.

May 2, 1927, commissioners of El Reno appointed a committee to recommend parties from whom the zoning commission and board of adjustment should be selected, and that said committee reported such names at a meeting held May 25, 1927, when the zoning commission and board of adjustment were appointed as provided by the ordinance. That neither the zoning commission nor the board of adjustment has made report or given the 15 days' notice, and no public hearing has been had as required; that plaintiff made no application to any one for a hearing; that plaintiff and Mr. Holden, agent of the railway company in El Reno, went to the city manager and informed him that they wished to build a filling station on right of way of street railway, and he promised the permit, but later said manager filed two complaints against plaintiff, charging him with violation of Ordinance No. 1061. The land is on right of way of railway company and in a district in El Reno in which the erection of such a building is prohibited by the ordinance.

Oral proof showed the location within a residential district of the city. After introduction of evidence, the court found all issues against plaintiff and in favor of defendants, from which plaintiff appeals.

Six specifications of error are made, but plaintiff's brief confines his contentions to three propositions:

(1) That the ordinance against the enforcement of which plaintiff brought this action was not passed in conformity with chapter 178, Sess. Laws 1923, and is, therefore, null and void. Plaintiff sets out that no zoning commission had been appointed, that no report of such commission had been filed, and that no notice of any public hearing was given and no public hearing had prior to the passing of Ordinance 1061. Plaintiff quotes sections 4 and 6 of said Session Laws as follows:

"Section 4. The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced, and from time to time amended, supplemented or changed. However, no such regulation, restriction or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality."

"Section 6. In order to avail itself of the powers conferred by this act, such legislative body shall appoint a commission to be known as the zoning commission to recommend the boundaries of the various original districts and to recommend appropriate regulations to be enforced therein. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report; and such legislative body shall not hold its public hearings or take action until it has received the final report of such commission. * * *"

We are of the opinion that the provision that no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, etc., is a provision that had in contemplation and applied to the adoption of the permanent comprehensive zoning ordinance under said act, and that it was not intended to and does not affect a temporary ordinance, such as 1061. From the clear words of such ordinance, giving such words their ordinary interpretation, taking into account the purpose and object thereof, also having in mind that ordinances should be so interpreted as to harmonize with other ordinances, if possible, and giving heed also to the title to the act, we think it clear that Ordinance 1061 was only a temporary and incidental step taken by the council before putting into effect the comprehensive permanent zoning ordinance provided for under chapter 178, Sess. Laws 1923. It was a precautionary measure, to prevent those who might be tempted to forestall the ordinance and neutralize its effect.

In the first clause of Ordinance 1061 is set out the following:

"Whereas, the governing body of the City of El Reno has heretofore taken the proper action as required by law for the compilation of a comprehensive zoning ordinance for this city; and

Whereas, no money was appropriated during the current fiscal year to devote to this purpose, and no money will in any event be available until July 1, 1927, and the proper study, holding of public hearings, compilation of zone maps, etc., can not be completed with reasonable satisfaction to all concerned within at least a year from that date; and

Whereas, it is necessary in view of the intention thus declared for the governing body of this city to exert some measure of control over the construction of structures and use of property to the end that its avowed purpose shall not be defeated in the interim, therefore:

Be it ordained by the board of city commissioners of the city of El Reno, state of Oklahoma:

Section 1. This ordinance hereby is declared to be enacted for the preservation and promotion of the public health, welfare and safety, and for the preservation and promotion of the convenience, good order, tranquility, prosperity, happiness, morals, best interests or general welfare of the inhabitants of the city of El Reno, * * * and to encourage and facilitate the orderly growth and expansion of said municipality, during the interim between the time of its adoption and the adoption of a comprehensive zoning ordinance according to regulations now prescribed by law. * * *"

The title of the ordinance is as follows:

"Ordinance No. 1061. An ordinance providing for the zoning of the city of El Reno during the interim between the passage thereof and the adoption and passage of a comprehensive zoning ordinance as provided in chapter 178, S. L. O. 1923."

Part of section 28, art. 8, of the ordinance is as follows:

"An emergency is hereby declared to exist by reason of which it is deemed necessary for the immediate preservation...