O'Rourke v. City of Tulsa

• Decision Date: 22 July 1969
• Docket Number: No. 42920,42920
• Citation: 1969 OK 112,457 P.2d 782
• Parties: Dan F. O'ROURKE, Jr., et al., Plaintiffs in Error, v. The CITY OF TULSA, a Municipal Corporation, Defendant in Error and Cross-Petitioner in Error, Ira J. Dietrich and Other Persons Similarly Situated, Intervenors-Defendants in Error.
• Court: Oklahoma Supreme Court

Page 782

457 P.2d 782

Dan F. O'ROURKE, Jr., et al., Plaintiffs in Error, v. The CITY OF TULSA, a Municipal Corporation, Defendant in

Error and Cross-Petitioner in Error,

Ira J. Dietrich and Other Persons Similarly Situated,

Intervenors-Defendants in Error.

No. 42920.

Supreme Court of Oklahoma.

July 22, 1969.

Syllabus by the Court

1. The action of a municipality in enactment or amendment of a zoning ordinance, or the refusal to do so, whether it be a master plan or a specific tract, is a legislative function. City of Sand Springs v. Colliver, Okl., 434 P.2d 186, being contra, it is expressly overruled.

2. A person aggrieved by the action of a municipality in passing upon an application for change of a zoning ordinance may challenge such action by filing a petition in the district court seeking injunctive relief in an equitable action against an ordinance which is unconstitutional in toto or in its particular application to the applicant.

3. Aggrieved party may challenge constitutionality of zoning ordinance by petition in district court for injunction without first filing an application with the board of adjustment for an exception or variance.

Appeal from the District Court of Tulsa County; Robert D. Simms, judge.

Appeal from an order of the district court of Tulsa County sustaining the demurrer of the intervenors-defendants in error to petition of plaintiffs in error seeking injunctive relief from enforcement by defendant in error cross petitioner in error of asserted unconstitutional zoning ordinance. Judgment reversed and remanded.

Byron S. Matthews, Tulsa, for plaintiffs in error.

Charles E. Norman, City Atty., William M. Northcutt, Roy Hinkle, Asst. City Attys., Tom F. Birmingham, Legal Intern, Tulsa, for cross-petitioner in error.

Houston, Klein & Davidson, R. L. Davidson, Jr., J. Barry Epperson, Tulsa, for intervenors-defendants in error.

Maurice H. Merrill, Fielding D. Haas, Norman, amici curiae.

HODGES, Justice.

Involved in this appeal is a question of the proper procedure for the review of zoning decisions by a municipal authority.

Plaintiffs are the owners of property in the City of Tulsa, which under a zoning ordinance is limited to single family dwellings. Plaintiffs sought to have the property rezoned for apartment uses. On application to the Tulsa Metropolitan Area Planning Commission the change in zoning was granted. Thereafter the matter was submitted to the City Commissioners of the City of Tulsa where the change in zoning was denied. The plaintiffs then filed this action in the district court seeking injunctive relief against the City of Tulsa from enforcing the zoning ordinance and to prevent the city from interfering with their construction of an apartment house on the property.

The City of Tulsa filed an answer to the petition of the plaintiffs, but the intervenors, who are neighboring landowners, filed a demurrer, attacking the petition on two points: (1) that plaintiffs have an adequate remedy by law by appealing from the order of the City Commission as authorized by 12 O.S. § 951; (2) that plaintiffs have failed to exhaust their administrative remedy in seeking an exception or variance under the ordinance from the Board of Adjustment.

The trial court sustained the demurrer of the intervenors. From this ruling the plaintiffs and City of Tulsa, who commenced this proceeding as adversaries, now jointly feel aggrieved by the trial court's ruling and uniquely both appeal.

Plaintiffs sought in this action relief by means of the extraordinary remedy of injunction. It is well established, however, that injunctive relief is not available where there is a plain, sufficient and adequate remedy at law. Home Appliance Store v. Anderson Hotels, 203 Okl. 592, 224 P.2d 953; Powell Briscoe, Inc. v. Peters, Okl., 269 P.2d 787. It is upon this principle of law that the intervenors urged and the trial court found that the plaintiffs had an adequate remedy at law under 12 O.S. § 951, and that plaintiffs' failure to invoke the appellate jurisdiction of the district court under this statute is fatal to their petition. Section 951 provides:

'A judgment rendered, or final order made, by any tribunal, board or officer exercising Judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court except where an appeal to some other court is provided by law.' (Emphasis supplied.)

The point then for our consideration under this proposition is whether the City Commission of Tulsa was exercising a Judicial function or a Legislative function when they refused to change the ordinance as requested by plaintiffs. In support of their position intervenors cite our recent opinion of City of Sand Springs v. Colliver, Okl., 434 P.2d 186, as determinative of this issue. As in the present case, Colliver was a proceeding before the City Commission on an application to rezone plaintiff's property. The Commission denied the plaintiff's application and appeal was taken to the district court under the appellate procedure of Section 951, supra. There we held in paragraph one of the syllabus:

'When City Commission exercises judicial function in hearing and denying application for change in zoning classification of plaintiff's property, appeal from such order of the Commission to the district court is authorized under 12 O.S.1961, § 951.'

The trial court's ruling in the present case was based principally upon our holding in the Colliver case. Historically, until the Colliver decision, we have held that the action of a City in the enactment or amendment of a zoning ordinance or a refusal to do so is a Legislative function of the municipality. In re Dawson, 136 Okl. 113, 277 P. 226; Beveridge v. Harper and Turner Oil Trust, 168 Okl. 609, 35 P.2d 435; State ex rel. Hunzicker v. Pulliam, 168 Okl. 632, 37 P.2d 417, 96 A.L.R. 1294; Keaton v. Brown, 171 Okl. 38, 45 P.2d 109; Oklahoma City v. Barclay, Okl., 359 P.2d 237; Higginbotham v. City of the Village, Okl., 361 P.2d 191; City of Tulsa v. Swanson, Okl., 366 P.2d 629; City of Tulsa v. Nicholas, Okl., 415 P.2d 917; Botchlett v. City of Bethany, Okl., 416 P.2d 613; Preston v. City of Stillwater, Okl., 428 P.2d 215. We have consistently held that a person aggrieved by the action of the City Commission in passing upon an application for change of a zoning ordinance may challenge such action by filing a petition in the district court seeking injunctive relief in an equitable action against an ordinance which is unconstitutional in toto or in its particular application to the applicant. City of Tulsa v. Thomas, 89 Okl. 188, 214 P. 1070; Grantham v. City of Chickasha, 156 Okl. 56, 9 P.2d 747; Cains Coffee Co. v. City of Muskogee, 171 Okl. 635, 44 P.2d 50; Magnolia Petroleum Co. v. City of Broken Bow, 184 Okl. 362, 87 P.2d 319; City of Village v. McCown, Okl., 446 P.2d 380.

While the Colliver case did not specifically consider whether the function of the City Commission acting in this capacity was a judicial or legislative function, the wording of the opinion did refer to it as a judicial function, which is contrary to our prior decisions.

In considering whether the action of the City Commission in a zoning matter is a legislative or a judicial function, a review of the authority of a municipality to act in zoning matter is helpful.

The authority of a municipality to enact zoning regulations is derived through its police power granted to it by the State. Title 11 O.S. § 401 et seq. specifically authorizes and grants to a municipality the power to zone within its corporate limits. Title 11 O.S. § 401 provides:

'For the purpose of promoting health, safety, morals, or the general welfare of the community, The legislative body of cities and incorporated villages is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.' (Emphasis supplied.)

It is to be noted that under this statute the authority to zone is vested specifically in the legislative body of the municipality. Therefore, when a municipality enacts a zoning ordinance, or refuses to change an ordinance they do so in a legislative capacity, rather than a judicial capacity.

As heretobefore mentioned in cited cases, we have always referred to the action of a municipality in a zoning matter as being legislative. In Keaton v. Oklahoma City, 187 Okl. 593, 102 P.2d 938, we held:

'By the enactment of Chapter 178 S.L.1923, Sec. 6170--6179, O.S.1931, 11 Okl.St.Ann. §§ 401--410, the State Legislature authorized municipalities to enact zoning ordinances, and when the Legislative branch of the municipal government has acted in a particular case, its expressed judgment on the subject will not be overriden by the judiciary, unless the same is unreasonable, arbitrary, or constitutes an unequal exercise of police power.' (Emphasis supplied.)

'Although the legislative body of a municipality may enact zoning ordinances, they are not precluded from amending, repealing or Changing same in the future, where the growth and progress of the municipality require it or where it is for the general welfare of the municipality as a whole.' (Emphasis supplied.)

Also, in Oklahoma City v. Barclay, Okl., 359 P.2d 237, we said:

'The right, power and authority of the Legislative body of cities to enact or amend zoning ordinance is statutory. The law granting such powers was enacted for the purpose of promoting health, safety, morals, or the general welfare of the Community. See Title 11 O.S.1951 § 401. By Legislative enactment municipalities are authorized to enact zoning ordinances, and when the legact zoning ordinances, and when the Legislative branch of the municipal government has acted in a...