Tulsa Rock Co. v. Board of County Com'rs of Rogers County

• Decision Date: 16 July 1974
• Docket Number: No. 46128,No. 1,46128,1
• Citation: 531 P.2d 351
• Parties: TULSA ROCK COMPANY, an Oklahoma Corporation, Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF ROGERS COUNTY, Oklahoma, Appellee, Bill Kirby et al., Intervenors-Appellees
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 351

531 P.2d 351

TULSA ROCK COMPANY, an Oklahoma Corporation, Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF ROGERS COUNTY, Oklahoma, Appellee Bill Kirby et al., Intervenors-Appellees.

No. 46128.

Court of Appeals of Oklahoma, Division No. 1.

July 16, 1974.

Rehearing Denied Aug. 20, 1974.

Certiorari Denied Jan. 28, 1975.

Released by Order of Court of Appeals Jan. 30, 1975.

Boesche, McDermott & Eskridge by T. H. Eskridge, Tulsa, and Carle & Douthitt by John R. Carle, Claremore, for appellant.

Bob J. Vinzant, Dist. Atty., Rogers County, Claremore, for appellee.

Bassmann, Gordon, Mayberry & Scarth by Bill R. Scarth, Claremore, for intervenors-appellees.

ROMANG, Judge:

Tulsa Rock Company, which was the plaintiff in both actions and is the appellant here, will be termed Tulsa Rock.

The Board of County Commissioners of Rogers County, Oklahoma, which was the defendant in both actions and an appellee here, will be termed the defendant or defendant Board.

Bill Kirby and others, who were allowed to intervene in both actions and are appellees here, will be termed the intervenors.

Tulsa Rock Company, which mines or quarries local limestone rock deposits and supplies the crushed limestone to various Tulsa area construction, concrete, and paving companies, asserts that because its present supply was about to become exhausted, it searched out and purchased the tract in question (The SW/4 and the S/2 of SW/4, both of Sec. 34, T. 21 N., R. 14 E., I.M.) in an area of Rogers County then entirely unzoned. Tulsa Rock asserts that the whole of said tract of 240 acres was underlaid by a high quality limestone deposit of from eighty-two to 100 feet in thickness, under a black gumbo overburden not over two feet thick. Having purchased this tract under another corporate name, Tulsa Rock assertedly spent the next eighteen months in testing and preparing the site, then, on March 8, 1971, notified the county commissioner from that district that it was starting mining thereon the next day. Tulsa Rock asserts (in its appeal brief) that the commissioner stated that, although there had been pressure for it, a zoning ordinance for the unzoned area had been prevented by a lack of funds for the necessary land use studies. After Tulsa Rock commenced its quarrying operations, various residents of the area, including some of the intervenors, presented to the defendant their written opposition to the quarry. At the direction of the defendant, the City of Claremore-Rogers County Metropolitan Area Planning Commission (hereinafter Planning Commission) held a hearing in order to make recommendations concerning proposed zoning. Two weeks after a lengthy hearing in a packed courtroom, the Planning Commission made its recommendations for zoning the previously unzoned 'Second Planning Area,' which area contains all of the Rogers County portion of the township in which Tulsa Rock's parcel lay, plus twelve other specified sections, and specified portions of eight other sections (Tulsa Rock's brief also refers to this area as comprising 'some 26 square miles'). This recommendation was that the entire Second Planning Area be zoned AG (Agriculture General), with two exceptions: (1) all land included in previously recorded residential subdivisions, and (2) Tulsa Rock's parcel, for which latter parcel the Planning Commission recommended the zoning classification of M (Mining). The defendant Board adopted the Planning Commission's recommendation that the classification AG (Agriculture General) apply in general, and that land in previously recorded residential subdivision plats be excepted therefrom and classified as RS--10 districts, but it did not accept the recommendation of M (Mining) district for Tulsa Rock's parcel, thus consigning it to the generally applicable AG (Agriculture General) classification.

Thereafter Tulsa Rock brought two actions against the defendant in the District Court of Rogers County, First, (No. C--71--140 in that court) it sought a judgment decreeing that the defendant's zoning resolution was void and enjoining the defendant from enforcing such zoning resolution as against Tulsa Rock's parcel, and also decreeing that said parcel be zoned as an M (Mining) district. Second, (No. C--71--141 in that court) it appealed to said district court from the zoning decision of the defendant, asking for a hearing de novo and a judgment reversing the defendant's action and classifying said parcel as an M (Mining) zone district.

The defendant demurred to the petition in C--71--140 and moved to dismiss it because Tulsa Rock had an adequate remedy at law and had not pursued its legal remedy of applying to the Board of Adjustment of Rogers County (as provided in the zoning regulations of said county). The intervenors filed a similar demurrer and motion.

Defendant also demurred to the petition in No. C--71--141 and moved to dismiss it on the grounds that appeal was not an available means of relief from the exercise by the county commissioners of the legislative function of enacting, changing, or refusing to change zoning regulations, and that Tulsa Rock had not pursued its available remedy of applying to the Board of Adjustment. Intervenors filed a similar demurrer and motion. The defendant also filed a motion to require Tulsa Rock, unless both of the suits were dismissed, to elect between the two actions or, alternatively, consolidate them. The trial court overruled the demurrers and motions to dismiss but granted consolidation of the two actions, allowing exceptions. The defendant answered and cross-petitioned to enjoin Tulsa Rock from conducting mining operations in violation of the AG (Agriculture General) zoning classification of Tulsa Rock's parcel. After a trial, the court denied Tulsa Rock any relief in C--71--140 (which sought injunctive relief) because of 'adequate remedies at law, one of which is by way of appeal,' and also denied Tulsa Rock any relief in C--71--141 because Tulsa Rock had failed to sustain its allegations and bacause the zoning resolution complained of was not void or invalid but valid, lawful and enforceable. In addition injunctive relief sought by cross-petition by the defendant and intervenors was granted (but held in abeyance until Tulsa Rock later withdrew its request for supersedeas bond).

At the outset we are faced with the question of whether an appeal to the District Court lies from the action of the county commissioners in enacting, changing, or refusing to change a zoning ordinance. In Gregory v. Board of County Commissioners of Rogers County, 514 P.2d 667 (1973) the Supreme Court of Oklahoma, overruling Garrett v. Watson, 342 P.2d 560 (Okl.1959), held that the action of the Board in denying an application for a change in zoning classification, was legislative and not judicial in nature, and therefore an appeal therefrom was not authorized by 19 O.S.1971, § 431. Gregory also noted that O'Rourke v. City of Tulsa, 457 P.2d 782 (Okl.1969), had held that the action of City Commissioners in refusing to Re-zone, being a legislative function, did not permit an appeal under 12 O.S.1961, § 951 (which then, as now, read 'A judgment entered, or final order made, by any tribunal, board or officer exercising judicial functions, and inferior 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.'). Gregory also quoted approvingly this broader declaration from O'Rourke: '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.'

Both Gregory and O'Rourke are consistent with Melton v. City of Durant, 521 P.2d 1372 (Okl.1974), in which the plaintiff, having been denied a permit by the Zoning Administrator to locate two additional mobile home trailers on a vacant lot contiguous with her trailer park, appealed to the Board of Adjustment, which upheld denial of the permit. The plaintiff sought mandamus from the state district court. Its denial of the writ was affirmed on two grounds, the first being that 11 O.S.1971, § 408 providing an appeal to the district court for review of adverse rulings of the Board of Adjustment, rendered applicable 12 O.S.1971, § 1452's provision that mandamus 'may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law.'

Accordingly, if Tulsa Rock had effectively applied to the Board of Adjustment, it could have appealed to the district court from an unfavorable decision by that Board; but, not having gone to the Board of Adjustment, Tulsa Rock could not directly appeal to the district court. Tulsa Rock's attempted direct appeal to the district court was therefore properly dismissed.

This raises the question as to whether failure to exhaust its administrative remedy by applying to the Board of Adjustment was sufficient to warrant the court's refusal to entertain a suit for injunction, even as Melton upheld the district court's refusal to issue mandamus. Admittedly, 12 O.S.1971, § 1452 in terms limits the issuance of mandamus, and does not refer to injunctions, but Oklahoma adheres to the historic rule that an injunction will not lie where there is an adequate remedy at law. Home Appliance Store v. Anderson Hotels of Oklahoma, 203 Okl. 592, 224 P.2d 953 (1951) (citing other Oklahoma decisions). Moreover, the applicable statutes (19 O.S.1971, §§ 866.22, 866.23) do not provide for an Appeal to the County Board of Adjustment from the Board of County Commissioners. We do not comment on the statements in the defendant's brief that Tulsa Rock has never sought a ruling from the Board of Adjustment on a Conditional Use Permit (whereby quarrying of nonmetallic minerals may be followed in an AG district). Tulsa Rock has a pending appeal in the...