Triangle Fraternity v. City of Norman, 96,363.

• Decision Date: 15 October 2002
• Docket Number: No. 96,363.,96,363.
• Citation: 63 P.3d 1,2002 OK 80
• Parties: TRIANGLE FRATERNITY, Plaintiff/Appellant, v. CITY OF NORMAN, ex rel. NORMAN BOARD OF ADJUSTMENT, Defendant/Appellee, and University Neighborhood Association, a not for profit corporation; Mckinley Elementary School Parent Teacher Association (PTA); Marjorie (Mrs. Duane) Roller; Judy Gibbs Robinson; E. O'Neil Robinson; Timothy Miller; Blake Gumprecht; David Dollarhide; and Victoria Dollarhide, Intervenors/Appellees.
• Court: Oklahoma Supreme Court

63 P.3d 1

2002 OK 80

TRIANGLE FRATERNITY, Plaintiff/Appellant, v. CITY OF NORMAN, ex rel. NORMAN BOARD OF ADJUSTMENT, Defendant/Appellee, and University Neighborhood Association, a not for profit corporation; Mckinley Elementary School Parent Teacher Association (PTA); Marjorie (Mrs. Duane) Roller; Judy Gibbs Robinson; E. O'Neil Robinson; Timothy Miller; Blake Gumprecht; David Dollarhide; and Victoria Dollarhide, Intervenors/Appellees.

No. 96,363.

Supreme Court of Oklahoma.

October 15, 2002.

Rehearing Denied February 3, 2003.

Anton Rupert, Christopher R. Graves, Oklahoma City, OK, for Plaintiff/Appellant.

Jeff F. Raley, City Attorney, R. Blaine Nice, Assistant City Attorney, Norman, OK, for Defendant/Appellee.

J. Kelly Work Oklahoma City, OK, for Intervenors/Appellees.

KAUGER, J.

¶ 1 The dispositive issue presented is whether a fraternity's proposed use of a property as a fraternity house constitutes the same use as the property's former use as a retired women's boarding house which would entitle the fraternity to an extension of the existing nonconforming use under the City of Norman's zoning ordinances.¹ We hold that because the fraternity's use of the property is substantially the same as the property's former use, the fraternity is entitled to an extension of the existing nonconforming use.

FACTS

¶ 2 This cause concerns a dispute over the zoning and use of a house known as the Kirkpatrick Manor, located at 702 S. Lahoma, in Norman, Oklahoma. On September 29, 2000, the appellant, the University of Oklahoma Chapter of Triangle Fraternity (fraternity), purchased the house from a group affiliated with the Presbyterian Church (Church). The house was originally built for the Pi Kappa Psi Fraternity in 1930. It is undisputed that at the time the house was built, the property was zoned a U-1 Residence District which allowed use of the property as a fraternity or sorority house.²

¶ 3 In 1932, the Pi Beta Phi Sorority (sorority) purchased the property, and it occupied the house until 1958. In 1954, the property was re-zoned to a R-1 District, a category which restricted use of the property to single family dwellings, as well as several semi-public uses such as churches, schools, and libraries, etc.³ However, under the City of Norman's (City) 1954 zoning ordinances, because the house had been a fraternity or sorority house since it had been built, it continued as a legal, but non-conforming use.⁴

¶ 4 In October of 1958, the sorority, in anticipation of selling the property to the Church, sought to have the property rezoned from a R-1 District to a R-2 District which specifically allowed boarding and rooming houses.⁵ The Church planned to use the property as a women's retirement home.⁶ It appears that the City Manager was of the opinion that the proposed use of the property was an entirely different use than a sorority house, and he recommended re-zoning.⁷ The City Planning Commission, concerned that the property might be used as a rest home or convalescent home, denied the request. Instead, it decided that the property could be used as a private club, with restrictions — a permissive use in the R-1 District.⁸ An ordinance was passed on November 11, 1958, which reflected the commission's decision.

¶ 5 In 1962, the Church applied for re-zoning of the lot next to the house because it wanted to expand, but the application was denied. The term "private club" was not a defined term in the City's ordinances, and that designation as a special use was eliminated from the ordinances in 1985. Even though the Church never sought a rooming and boarding license, the Church operated the retired women's home as a boarding house until it sold the property to the fraternity. After the fraternity purchased the property, it sought a rooming/boarding house license, which the City requires from all fraternities and sororities. Although the property was not zoned for a rooming/boarding house, the fraternity sought the permit under the theory that its use of the property was a continuation of the use made by the Church and that it qualified as a nonconforming use under the City's ordinances.⁹

¶ 6 Staff for the City of Norman initially agreed with the fraternity. However, several neighbors objected. After the City uncovered the minutes from the 1958 meeting and the old ordinance which had declared the property a private club, the appellee, Board of Adjustment (Board) determined on December 13, 2000, that the fraternity's proposed use of the property was not a legal nonconforming use, and that the fraternity must seek to have the property re-zoned.

¶ 7 The fraternity appealed to the district court and the neighborhood association intervened. The district court, after a de novo¹⁰ review, affirmed the Board. It determined, as a matter of law and fact, that the fraternity's proposed use of the property differed from the Church's use of the property, and that it was not the same nonconforming use. The fraternity appealed, and on April 5, 2002, the Court of Civil Appeals affirmed. We granted certiorari on June 5, 2002.

¶ 8 BECAUSE THE FRATERNITY'S PROPOSED USE OF THE PROPERTY IS SUBSTANTIALLY THE SAME AS THE PROPERTY'S FORMER USE, THE FRATERNITY IS ENTITLED TO AN EXTENSION OF THE EXISTING NONCONFORMING USE.

¶ 9 A nonconforming use of property relates to the use of land which existed prior to the enactment or change of a zoning ordinance. It is a use which is impermissible under the zoning code, but allowed because the use existed lawfully before the use restrictions became effective.¹¹ Once a lawful nonconforming use of property is established in the City of Norman, it may continue from one owner to another, as long as the nonconforming use remains the same.¹²

¶ 10 The City and the neighborhood association assert that the fraternity's proposed use of the property as a fraternity house is a change in use from the retirement home for elderly women and, as such, is prohibited. The fraternity insists that its proposed use is the same as the current lawful nonconforming use, and that because its use will not change, it is entitled to an extension of the existing nonconforming use. The City also argues that there is a presumption of correctness in the Board's decision, and that we must affirm the trial court because its decision was neither against the weight of the evidence nor arbitrary or capricious.

¶ 11 This Court has generally characterized proceedings in district court on appeals from Boards of Adjustment in zoning matters as being equitable in nature, and we have recognized that the question on review is whether the judgment of the district court is clearly contrary to the weight of the evidence.¹³ A presumption of correctness attaches to the Board's decision when it has been affirmed by the district court which should be given great weight. The Board's decision should not be overturned unless it is arbitrary or clearly erroneous.¹⁴ The reviewing court may not simply substitute its judgment and discretion.¹⁵ We agree that we must defer to the trial court's factual findings if they are supported by the evidence. However, because the determination of whether a nonconforming use has changed involves the application of the established facts to a legal standard, it is as a question of law which should be reviewed de novo.¹⁶ ¶ 12 We have not addressed the precise issue of whether the use of property as a fraternity house constitutes the same use of property as a retirement home for elderly women. However, our decision in Royal Baking Co. v. Oklahoma City, 1938 OK 75, 75 P.2d 1105 is instructive.

¶ 13 The primary issue in Royal Baking involved the right of a business to use a frame structure on its business premises for a garage or repair shop for its trucks. The business purchased two lots which adjoined its property and converted a little house on one of the lots into a garage and repair shop. A zoning ordinance was passed which zoned the area, restricting the use of property to the building of apartment houses and similar structures. In discussing the need for the business to be allowed to accommodate an increased trade, the opinion held at ¶ 17:

". . . The business has not changed in kind. The neighborhood will not be changed or seriously injured by the enlarged incidental use to which the premises are put. By allowing a degree of elasticity in the application of the ordinance so that no arbitrary or unreasonable burden is imposed upon the pursuit of the occupation involved, we can, in view of all the circumstances of this case, avoid the necessity of declaring the ordinance unconstitutional in its application or its general scope. . ."

¶ 14 Royal Baking teaches that before deciding whether a lawful nonconforming use has changed or expanded, a determination must be made concerning whether the nature of the use has substantially changed, or whether the proposed use is of a character to change the neighborhood to ensure that the ordinance is not applied arbitrarily. Other courts have employed a similar rationale when considering whether a proposed use is the same as a pre-existing use. These courts generally determine that a proposed use must be a substantial change in the nature, character, or purpose of the pre-existing nonconforming use before it is no longer allowed.¹⁷ ¶ 15 At trial, the evidence established that the property was used as a fraternity or sorority house from 1930 until 1958. From 1958 to 2000, the property was used as a retirement home for women. During its use as a retirement home, 20-22 persons lived there. Meals were prepared for them, social and recreational activities were organized, and some of the residents had automobiles.

¶ 16 The fraternity proposes to use the property as a fraternity house for meetings, activities, parties and other occasional functions. The fraternity currently has about 22 or 23 members, plus uninitiated pledges and expects 22 or 23 of its members to occupy the house. It...