Weaver v. Bishop
| Decision Date | 05 November 1935 |
| Docket Number | 24233. |
| Citation | 52 P.2d 853,174 Okla. 492,1935 OK 1093 |
| Parties | WEAVER et al. v. BISHOP et al. |
| Court | Oklahoma Supreme Court |
As Corrected December 13, 1935.
Syllabus by the Court.
1. Where a zoning ordinance does not provide the procedure in relation to notice to adjacent property owners of the presentation of applications for building permits, or other pertinent matters, the rule is that the procedure to procure same under such ordinance is governed by the same rules which apply in obtaining municipal building permits generally.
2. The function of municipal building permits is to evidence compliance by the applicants with the applicable ordinances and regulations and to furnish evidence to the proper authority that the proposed construction will meet building requirements, and not to determine the mutual rights of property owners, and the issuance of such permits is not a hearing upon or an adjudication of such mutual rights of property owners who are not parties to the proceedings.
3. It is well settled that zoning ordinances based upon the Standard Zoning Enabling Act are valid enactments and are not repugnant to the provisions of the Constitution of the United States or of the state and that where classifications of property in a comprehensive zoning plan, adopted by the legislative authority of the municipality, are attacked, it is assumed that the same are fair and reasonable, and where the validity of the classifications are fairly debatable the expressed legislative judgment embodied in the ordinances must be allowed to control, and the courts will not substitute their judgments for that of the legislative bodies of the municipalities and the conclusions of such bodies as expressed in the ordinances will not be disturbed, although in the very nature of things such classifications must in many instances be more or less arbitrary.
4. A drive-in filling station operated in the usual and proper manner for the sale of gasoline, oil, and other like commodities, is not a nuisance per se, or in law, that is a nuisance at all times and under all circumstances, without regard to location, environment, and manner of conduct however, such filling station may be a nuisance in fact, or per accidens, on account of its location and surroundings and the improper manner in which same may be conducted. The legislative body of the city of Tulsa had the power under the Zoning Enabling Act to classify retail filling stations as being proper commercial installations, and to zone the intersection involved for such commercial uses, and such classification and zoning do not appear from the evidence or the findings of the trial court to be improper or unreasonable.
5. The general rule is that "municipal ordinances or regulations duly enacted by municipal governing bodies, in pursuance of statutory authority and within the powers that a municipal corporation ordinarily have, within the territorial jurisdiction of the corporation, and as to those persons against whom the municipal power may be exercised, the same force and effect as statutes or legislative enactments."
6. Under the provisions of section 11492, O.S. 1931, where specifically designated property located at a street intersection is duly zoned in an ordinance regularly enacted by a municipality, under the authority of the Zoning Enabling Act, for commercial use, which use by the terms of the said ordinance includes the operation of retail filling stations and a permit is duly issued for the construction in a proper manner of such filling station, the erection of same at the designated intersection may not be enjoined as a nuisance, in the absence of a showing that the filling station is being either improperly erected, or that the same will be negligently or improperly conducted.
7. That the vicinity of the intersection involved has been partially occupied and substantially improved as an exclusive residential district on the mistaken assumption and belief that same was zoned as such, and that same would remain so is immaterial in determining whether the plaintiffs are entitled to injunctive relief against the erection and operation in a proper manner of a filling station thereat, where it appears that in fact the district has been regularly zoned for commercial as well as residential use for a number of years, and it does not appear that such zoning was unreasonable.
8. Where it appears that the intersection involved was duly zoned for commercial use, which in terms includes retail filling stations, prior to 1927, and was included in the city of Tulsa during that year, that pursuant to the provisions of said zoning ordinance, application was made by and a permit issued to the defendant in regular form to erect thereat a filling station of the better class, size, style, appearance, surroundings, landscaping, and to be conducted and maintained as an ordinary filling station, the plaintiffs are not entitled to a decree enjoining the construction of such filling station, even though it appeared that damage would result therefrom, unless it is further made to appear that such injury would result because of improper construction or improper operation of the filling station.
9. Property owners are generally entitled to injunctive relief against the creation or maintenance of a nuisance to their damage in proper cases, and ordinarily an action for the recovery of damages that may result from the creation or maintenance of a nuisance is not deemed adequate relief; however, under the found and admitted facts in the case at bar, no such cause for equitable relief existed, and the plaintiffs at all times since the enactment of the said zoning ordinance clearly possessed the right and adequate remedy of applying to the board of adjustment for the amendment or modification of the classification of the intersection herein involved.
10. Where a temporary injunction is granted the plaintiffs in a cause, it is proper for the trial court, in entering a decree on the merits which grants a permanent injunction, to discharge the sureties on the bond for temporary injunction from further liability; however, where the said decree is reversed on appeal, the said bond for temporary injunction remains in full force and effect until final decree determining as to whether or not the plaintiffs were entitled to the said temporary injunction.
Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.
Suit by W. Bishop and others, against O. G. Weaver and another, as defendants, for a permanent decree of injunction against the erection of a drive-in filling station. Decree granted, and defendants appeal.
Reversed and remanded.
H. O. Bland and G. E. Conway, both of Tulsa, for plaintiffs in error.
Horace H. Hagan and T. Austin Gavin, both of Tulsa, for defendants in error.
The plaintiffs, as the owners of three of the corners at the intersection of Twenty-First street and Louis avenue in the city of Tulsa, filed this suit on March 10, 1932, praying a decree against the defendants constructing and operating a service and filling station on the northeast corner of the said intersection. The grounds alleged as a basis of the injunctive relief prayed are in substance that the residences of four of the plaintiffs are located on or in the vicinity of the northwest and southeast corners of the said intersection and that the remaining plaintiffs operate a school for young ladies in the vicinity of the southwest corner of said intersection, and that the defendant Weaver intends and is about to construct a service and filling station on the remaining northeast corner of said intersection; that said premises are located in an exclusive residential section of the city; that plaintiffs have expended large sums of money in so improving their said property on the assumption and belief that said premises were and would continue to be so restricted, and would not be classified as commercial or business property, and that at least a portion, if not all of said premises, has been classified or zoned for residential purposes.
Plaintiffs further alleged that on June 8, 1932, the defendant Weaver procured from the defendant Lightfoot, as building inspector a permit to erect a filling station on the said northeast corner of said intersection; that said permit was obtained without notice to or the knowledge of the plaintiffs, and that plaintiffs were unaware of the issuance of said permit until February 13, 1932, and at which time the plaintiffs filed objections and protests against the issuance of same with the board of adjustment of the city; that a hearing was had thereon before said board and on February 16, 1932, the secretary of the said board, acting on behalf of the board adjudged the issuance of the said permit an error, and instructed the building inspector to stop work under the said permit; that said building inspector treated the objections as an appeal and notified the defendant Weaver that an appeal had been taken from his action in issuing said permit and directed the said defendant to stop all work in erecting the said station; that on February 23, 1932, the defendant Weaver filed with the board of adjustment a motion to strike the objections and protests on the part of the plaintiffs from the files and records of the said board; that thereafter on February 26, 1932, the said board in a regular meeting, with all interested parties present, adjudged and decreed that the board should decline to take jurisdiction in revoking the said permit; that the defendant, Weaver, has begun preparations to erect the said filling station and has orally stated that it is his intention to construct same, and that unless restrained and enjoined the said defendant will construct same ...
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