Reed v. City of Bartlesville

• Decision Date: 13 February 1973
• Docket Number: No. 44144,No. 1,44144,1
• Citation: 510 P.2d 1013
• Parties: Katherine REED et al., Appellants, v. The CITY OF BARTLESVILLE et al., Appellees
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1013

510 P.2d 1013

Katherine REED et al., Appellants, v. The CITY OF BARTLESVILLE et al., Appellees.

No. 44144.

Court of Appeals of Oklahoma, Division No. 1.

Feb. 13, 1973.

Rehearing Denied March 6, 1973.

Shoemake & Briggs, Pawhuska, for appellants.

Brewer, Worten & Robinett, Bartlesville, for appellees.

BAILEY, Presiding Judge:

The issue in this case is whether the plaintiffs' petition as amended pleads an actual controversy under the Oklahoma Declaratory Judgment Act, 12 O.S.1971, §§ 1651--1657. The trial court sustained a demurrer and dismissed the action on the ground that it did not.

The petition alleges in substance that plaintiffs own or hold title to land located in an area the use of which is regulated by an airport zoning ordinance purportedly enacted pursuant to 3 O.S.1971, §§ 101--115 by an airport zoning board. The plaintiffs claim that the ordinance decreases the value of plaintiffs' property and is without effect because it was adopted without notice and without compliance with statutory procedures, that the ordinance is unconstitutional in its general scope and effect and that the authorizing statutes also are unconstitutional for various reasons. There is no averment in the petition of any use of any of the plaintiffs' properties presently or any intended use in the future in any manner inconsistent with such ordinance nor of any application to the Board for an exception or variance from the ordinance.

Under these circumstances is an actual controversy with the agency or political subdivisions presented? Apparently the Oklahoma Supreme Court has on only one occasion determined that a trial court should refuse declaratory relief for want of an actual controversy. Gordon v. Followell, 391 P.2d 242 (1964). That case is in no way similar to the present one on the facts and for want of other authority we have looked to cases elsewhere in which plaintiffs have sought a declaration that a zoning ordinance was invalid. We have found only a few cases in which the plaintiff had taken no action inconsistent with the zoning ordinance following its enactment and where he sought to have the ordinance delcared invalid on various grounds merely because his property was in the zoned area. In these cases the courts have refused to consider the invalidity of the ordinance In its application to the specific property for want of a justiciable controversy. Nevertheless other claims in the same cases of the invalidity of the ordinance In its general scope and effect have been reviewed both by the trial court and the appellate court. Plebst v. Barnwell Drilling Co., 243 La. 874, 148 So.2d 584 (1963); Nardi v. City of Providence, 89 R.I. 437, 153 A.2d 136 (1959); Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771 (1952). There is good reason for this distinction. A petitioner's contention that a zoning ordinance is arbitrary or unreasonable in its application to his specific property should not result in a needless judicial declaration that the ordinance is invalid as applied to his property if an application to the zoning board might result in a variance or exception. The administrative agency, not the court, should have the first opportunity to make adjustments in the regulatory scheme. Therefore the court refuses inquiry because the issue is not yet ripe for judicial determination. However there is no similar reason for postponing judicial inquiry into the general invalidity of a zoning ordinance on grounds such as that it was adopted without notice or without following statutory requirements, or that it is unconstitutional not as applied to any particular property but in its general pattern and effect. These are the general grounds asserted by the plaintiffs in this case. Presentation of these general grounds of invalidity to the administrative agency would only delay judicial determination of those issues with no possibility of avoidance of court action ultimately and with no gain in the delineation of the legal issues in the process.

Defendants argue in effect that it takes two to have a dispute and that while the plaintiffs have taken a position as to the invalidity of the ordinance, the defendants have never contested or disputed the matter with them. This overlooks the fact that the ordinance was adopted through the efforts of the defendants and undoubtedly upon the assumption that it is valid and will be enforced when occasion requires it. It has been held that where a plaintiff is challenging the validity of a statute by declaratory judgment that he need not allege that it will be enforced because that will be presumed. Hoagland v. Bibb, 12 Ill.App.2d 298, 139 N.E.2d 417 (1957).

Do the plaintiffs have an interest which presently is adversely affected? Plaintiffs own or have title to property which lies in the zoned area. Even though the plaintiffs have no yet used their properties in any manner inconsistent with the ordinance nevertheless the zoning ordinance operates as a legal restriction or limitation upon the plaintiffs' ownership in the same manner as would an easement. Regardless of whether the owner uses or intends to use that portion of his property subject to an easement in a manner inconsistent therewith he is entitled to a declaration by a court that the easement is invalid. See Richmond-Wellington Hotel Co. v. Collins, 336 Mass. 360, 145 N.E.2d 818 (1957). Compare Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1925).

Defendants cite federal cases in support of their position. Admittedly some such cases have refused even a general attack upon a zoning ordinance under the Federal Declaratory Judgment Act unless the plaintiff has taken definite steps to use his property in a manner inconsistent with the zoning ordinance. West v. Bank of Commerce & Trusts, 153 F.2d 566, 174 A.L.R. 848 (4 Cir. 1946); McLarty v. Borough of Ramsey, 166 F.Supp. 291 (D.N.J.1958). However this strict view of the evolvement required in a legal dispute to constitute a controversy in a federal declaratory judgment proceeding is based on factors peculiar to the federal courts: (1) As the courts of a...