Osage Nation v. Bd. of Comm'rs of Osage Cnty.

Decision Date02 May 2017
Docket NumberNo. 113414, No. 113415,113414
Citation394 P.3d 1224
Parties The OSAGE NATION, Plaintiff/Appellant and The Osage Minerals Council, Plaintiff, v. BOARD OF COMMISSIONERS OF OSAGE COUNTY, Oklahoma; Board of Adjustment of Osage County; and Osage Wind LLC, Defendants/Appellees. The Osage Nation, Appellant, and The Osage Minerals Council, Plaintiff, v. Osage County Board of Adjustment, Appellee, and Osage Wind, LLC, Intervenor.
CourtOklahoma Supreme Court

John W. Moody, Tulsa, Oklahoma for Appellant, Osage Nation.

R. Tom Hillis, Assistant District Attorney of Osage County, Pawhuska, Oklahoma, for Defendants/Appellees Osage County Board of Adjustment and Board of Commissioners of Osage County.

Joel L. Wohlgemuth and Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa, Oklahoma, for Defendant, Osage Wind, LLC.


¶ 1 The District Court of Osage County had three related but distinct proceedings before it involving wind farms in Osage County, and orders in each of the three were appealed to this Court.1 One of the appeals was adjudicated by our recent opinion in Mustang Run Wind Project, LLC v. Osage County Board of Adjustment , 2016 OK 113, 387 P.3d 333. The remaining two appeals arise from a single journal entry of judgment which adjudicated claims in two District Court proceedings, and we address those two appeals by a single appellate opinion.

¶ 2 The first appeal, Okla. Sup. Ct. No. 113,414, arises from a journal entry of judgment adjudicating claims made in Osage County case CV-2014-41. The Osage Nation and the Osage Minerals Council filed a proceeding in the District Court for Osage County and requested declaratory and injunctive relief against the Board of Commissioners of Osage County, the Board of Adjustment of Osage County, and Osage Wind, LLC. Plaintiffs' request for relief was based upon an allegation defendants Board of Commissioners and Board of Adjustment had created an "unlawful authorization of wind energy facilities in Osage County."2 The Board of County Commissioners and Board of Adjustment filed a combined motion to dismiss. Osage Wind, LLC, filed a separate motion to dismiss.

¶ 3 When responding to these motions the plaintiffs summarized their position and stated that "neither Osage County law nor State of Oklahoma law authorize the Board of Adjustment of Osage County ("Board of Adjustment") to issue a Conditional Use Permit ("CUP") for a wind energy facility in Osage County."3 Plaintiffs argued the Legislature created five different statutory schemes for counties to enact zoning regulations and the authority for creating conditional use permits was not granted to counties. Plaintiffs also argued sections 1.7.1, 2.1.2, and 6.5.2 of the Osage County zoning ordinances do not allow a conditional use permit. They argued the Osage County Wind Energy Ordinance was improperly created due to an alleged deficient public notice.

¶ 4 The second appeal, Okla. Sup. Ct. No. 113,415, is brought by the Osage Nation from adjudicated claims made in Osage County case, CV-2014-36. This appeal was prosecuted pursuant to Rule 1.36 which provides for the trial court filings to serve as the appellate briefs and the assignments of error on appeal are those listed in an appellant's petition in error.4 The Osage Nation's petition in error in this Court classifies this District Court proceeding as an appeal from a decision of the Osage County Board of Adjustment.

¶ 5 The petition in error alleges: (1) Appellant could prove facts in support of its claim and dismissal for failure to state a claim was improper; (2) Appellant was entitled to a trial de novo on an appeal from a board of adjustment; (3) Disputed facts were raised by the motions to dismiss, and the motion to dismiss should have been converted to summary judgment and appellant provided an opportunity to respond; (4) Appellant possessed a statutory right to challenge the decision of the board of adjustment; (5) Counties possess zoning powers only when granted by the Legislature; (6) 19 O.S. 2011 866.23 does not give authority to Osage County the to adopt a zoning ordinance empowering the Board of Adjustment to approve special use permits or conditional use permits; (7) A trial de novo was required to determine whether Osage County Zoning Ordinance, 6.5.2, was valid and constitutional as measured against 19 O.S. 2011 866.23 ; (8) Zoning Ordinance 6.5.2 is void ab initio because it authorizes the board of adjustment to issue conditional use permits; (9) The Board of Adjustment had no authority to approve a conditional use permit for a wind generating facility; (10) Sections of Oklahoma Statutes, Title 11, giving authority to municipalities to pass zoning ordinances and authorizing a board of adjustment to grant conditional use permits do not authorize a county board of adjustment to issue such permits; (11) Issues precluded by the previous litigation in federal court should not prevent an appeal from a board of adjustment; and (12) Issue preclusion and laches do not bar an appeal from a decision of a board of adjustment when the board acts outside its jurisdiction by issuing a conditional use permit. The District Court held a hearing to simultaneously address the pending District Court proceedings involving these parties, and dismissed both cases by a single journal entry of judgment after hearing arguments from counsel. The filed judgment first addressed the motion to dismiss and the sufficiency of the petition in CV-2014-41.

¶ 6 The District Court determined the Osage Nation's 2014 legal challenge seeking declaratory and injunctive relief came too late to attack a conditional use permit granted to Osage Wind in 2011, and the challenge was barred by laches. The trial court stated "all of the alleged legal infirmities in the Petition for Declaratory Judgment fail as a matter of law on their merits." The trial court also determined the Osage Nation and the Osage Minerals Council lacked standing to prosecute the claims raised because these parties "litigated the issue of the Osage Wind energy project's interference with their mineral estate in the United States District Court for the Northern District of Oklahoma ... and lost that issue on the merits ... [and] they are accordingly precluded by the doctrines of claim preclusion and issue preclusion from relitigating that finding of fact in this proceeding." The trial court determined other issues raised by plaintiffs were insufficient to confer standing "because they fail to demonstrate an injury in fact to a legally protectable interest of the Osage Nation or the Osage Minerals Council."

¶ 7 The judgment then addressed CV-2014-36 and dismissed it because (1) all of the grounds in support of dismissal in CV-2014-41 also supported dismissal in CV-2014-36, and (2) the claims of the plaintiffs were barred by a ten-day statute of limitations for appeals of decision of boards of adjustment in 19 O.S. 865.64. No order consolidating the two cases in the trial court appears in either of the appellate records in this Court, and we have treated them as companion cases for the purpose of appellate review.

I. Okla. Sup. Ct. No. 113,415, Board of Adjustment Appeal (No. CV-2014-36).

¶ 8 In May 2014, the Osage Nation filed in the District Court a "Notice of Appeal." This Notice states appellant's "do hereby appeal the decision of the Board of Adjustment of the County of Osage, Oklahoma, rendered on May 8, 2014, denying Appellant's Petition to the Board of Adjustment to Rescind the Wind Capital Energy Project Variance rendered in Case No. CUP-2012-01 and Prohibit Construction at the Project Site Until the Board Properly Authorizes the Project (the "Petition") to the District Court of Osage County, State of Oklahoma." Osage Wind, LLC, filed a motion to intervene in the District Court proceeding.

¶ 9 During the trial court hearing the Osage Nation argued the conditional use permit approved for Osage Wind, LLC, in a 2011 Board of Adjustment hearing was void because the Board did not possess authority to issue such a permit, and this alleged jurisdictional flaw had legal consequences of: (1) negating the ten-day statutory limit for filing a Board of Adjustment appeal to the District Court, (2) providing the Osage Nation an opportunity to file an appeal in the District Court from the Board's decision and thereby challenge the underlying three-year-old decision of the Board which issued the permit, and (3) providing the Osage Nation with an opportunity to file a petition to vacate the permit with the Board and then appeal that decision to the District Court.

¶ 10 In 1995, we explained when an order is "utterly void on its face" this attribute does not change or alter the time for appealing that order: "One cannot justify postponing an appeal by one's good-faith belief in the decision's invalidity. Mandatory appeal time applies to orders, whether valid or infirm."5 A municipal board of adjustment exercises quasi-judicial power when granting a variance,6 and the statutory requirements for perfecting an appeal from a municipal board of adjustment are mandatory.7 A county board of adjustment deciding to issue a conditional use permit also exercises a quasi-judicial power.8 An appeal from a county board of adjustment's decision to a District Court is required by 19 O.S.2011 865.64 to be brought within ten days.9

¶ 11 In the related case of Mustang Run Wind Project, LLC v. Osage County Board of Adjustment , 2016 OK 113, 387 P.3d 333, we observed "the materials presented in the appellate record appear to show the existence of a cooperative municipal and county planning commission, i.e. , "Pawhuska–Osage County Planning Area Commission" which regulates zoning in all of Osage County" and we applied the City-County Planning and Zoning Act, 19 O.S. 2011 866.1 –866.35.10 This Act also contains a similar ten-day requirement for an appeal from a Board of Adjustment to a District Court: 19 O.S.2011 866.24.11

¶ 12 A statutory time limit...

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