Seventeen Hundred Peoria, Inc. v. City of Tulsa

• Citation: 422 P.2d 840
• Decision Date: 02 August 1966
• Docket Number: No. 41050,41050
• Parties: SEVENTEEN HUNDRED PEORIA, INC., Plaintiff in Error, v. CITY OF TULSA and D. N. Irwin, Defendants in Error.
• Court: Supreme Court of Oklahoma

Page 840

422 P.2d 840

1966 OK 155

SEVENTEEN HUNDRED PEORIA, INC., Plaintiff in Error, v. CITY OF TULSA and D. N. Irwin, Defendants in Error.

No. 41050.

Supreme Court of Oklahoma.

Aug. 2, 1966.

Rehearing Denied Sept. 27, 1966.

Second Rehearing Denied Jan. 24, 1967.

Syllabus by the Court

1. Where the language of a statute or ordinance is plain and unambiguous and its meaning clear and no occasion exists for the application of rules of construction, the statute will be accorded the meaning as expressed by the language therein employed.

2. The rule of construction of statutes and ordinances, to which all other rules are subordinate, is to ascertain the intention of the enacting body, and this should ordinarily be done by consideration of the language of the statute or ordinance, and the courts should not read into a statute exceptions not made therein.

3. Facts examined, and Held: That in the present appealed matter, involving action brought pursuant to Declaratory Judgment Act, 12 O.S.1961, Secs. 1651--1657, where the lower court construed the ordinance of the City of Tulsa to require the plaintiff to install a fire sprinkler system in the apartment building then being constructed by plaintiff, it was not error for the trial court to order the plaintiff to make such installation.

Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

Action by Seventeen Hundred Peoria, Inc. against City of Tulsa and D. N. Irwin for a Declaratory Judgment construing the City's building code and a determination of whether such code required the installation of a fire sprinkler system in the apartment house being built by plaintiff. Plaintiff appeals from a judgment construing the code to require such installation. Affirmed.

Floyd L. Walker, Tulsa, for plaintiff in error.

Charles E. Norman, City Atty., Louis Levy, Asst. City Atty., Tulsa, for defendants in error.

DAVISON, Justice.

The parties occupy the same relative positions in this court as they did in the lower court and will be referred to herein by name or as plaintiff and defendants.

Plaintiff appeals from a judgment of the lower court wherein, upon trial to the court, it was found and adjudged that the lower level of an apartment house in process of construction was not a basement and therefore should be considered as a story in determining the height of the apartment in terms of stories. The court further found and adjudged that the apartment house was three stories in height and that under the city's ordinances the plaintiff, as owner of the apartment house under construction, was required to install a sprinkler system therein for fire prevention purposes. In the judgment the court directed plaintiff to make such installation.

The plaintiff filed its action December 19, 1963, under the provisions of the Declaratory Judgment Act, 12 O.S.1961, § 1651 et seq., alleging, that it was the owner of a large apartment building then in course of construction, that the lower level under the south portion thereof was defined as a basement by the city ordinances (hereinafter narrated or quoted) and was not to be counted as a story under the ordinance requiring an apartment house of three stories to be sprinklered, that the city was about to stop construction unless the sprinkler system was installed, and prayed that the court determine whether the ordinances required installation of a sprinkler system, and that the city and its agents be restrained and enjoined from interfering with construction of the apartment house. The court issued a temporary restraining order. The defendants filed no pleading or answer.

Upon trial of the matter on January 29, 1964, the court denied the prayer for injunction and rendered the judgment recited above. The temporary restraining order was continued in force pending disposition of this appeal. At the time of trial the plaintiff admitted that the construction of the building was at a stage where the sprinkler system could have been installed without any alteration of prior construction. The building has been completed without such installation.

When the plans for the 54 unit apartment house were submitted to the city for approval the defendant Irwin (City Building Inspector) and an officer of plaintiff agreed upon construction of two fire walls from the ground to above roof line, whereby the long 261 foot structure was divided into three equal divisions of 87 feet each. It is the south division or portion that is the subject of this controversy. After some discussion of the plan as to whether a tier of apartments beneath a part of the south division was a story, and when added to the two stories of apartments above, constituted a three story apartment house requiring a sprinkler system, the defendant Irwin endorsed thereon 'sprinkler.' When the building permit was issued by the city on September 19, 1963, there was written therein 'Sprinkle-south end.' The plaintiff's officer accepted the city's decision with some expressed reservation as to whether the lower level under the south division was, under the ordinances, to be counted in determining the height in stories of the south one-third division.

The pertinent city ordinances provide:

"Basement means a story of a building or structure having one-half or more of its clear height below grade. Also see 'Story'.

"Court means an open, uncovered, unoccupied space on the same lot with a building;

"inner court means any court other than an outer court or yard;'

"Grade, with reference to a building or structure, means the average elevation of the ground adjoining the building or structure on all sides.'

"Height, as applied to a building, means the vertical distance from grade to the average elevation of the roof of the highest story: 'height' of a building in stories does not include basements--see 'Story'.

"Multifamily house means a building or portion thereof containing three or more dwelling units; including tenement house, apartment house, flat."

"Sprinklered means equipped with an approved automatic sprinkler system."

"Story means that part of a building comprised between a floor and the floor or roof next above. * * *"

"Multifamily houses of wood frame construction shall not exceed the height limits given in table 401 nor shall they exceed 2 stories in height except that if sprinklered they may be 3 stories in height."

The apartment house extends 261 feet north and south and faces west on Peoria Avenue in the City of Tulsa. From the front it appears to be a two story structure because of a rising terrace along that side. The roof extends the entire length except where broken by the above mentioned fire walls. The area it rests on slopes down to the south and southeast.

The south one-third lying south of the fire wall has been recognized by the parties as being a 'building' under city ordinances. It is 87 feet north and south and 80 feet east and west and in the approximate center thereof is a rectangular inner court (open to the sky) about 33 feet wide and 39 feet long with a swimming pool in the...