O'ROURKE v. City of Tulsa

BERRY, Vice Chief Justice

(dissenting).

My disagreement with the conclusion of the majority is two-fold.

The zoning commission constitutes a municipality’s legislative body for preparation and administration of zoning laws. Initially, it may be argued the authority conferred by applicable statutes, 11 O.S. 1961 , § 401 et seq., as concerns enactment or amendment of zoning laws properly may be denominated a legislative function when invoked for classification of all property for zoning purposes. However, in my opinion, authority to act in a legislative capacity as respects adoption of zoning classifications for a comprehensive zoning plan, does not suffice to uphold every act of a zoning commission as legislative in nature.

As in City of Sand Springs v. Colliver, Okl., 434 P.2d 186 , many instances arise when, despite the claim of “legislative” action, the zoning authority acts in a judicial capacity in determining the issue involved. In Colliver, supra, the legislative action encompassed adoption of a comprehensive zoning plan, by which any landowner’s property automatically was zoned for residential purposes when annexed to the city. It is difficult to understand, however, upon what basis the relief extended by adoption of a special exception or ordinance varying the original plan likewise can be called a legislative function. The basic inquiry necessary to determine whether reason exists for change in zoning classification by amendatory ordinance inevitably involves both fact-finding and exercise of a measure of discretion. In Pyatt v. Mayor, etc. of Dunellen, 9 N.J. 548 , 89 A.2d 1 , such action was referred to: “ * * The process calling for the exercise of discretion by the governing body according to the weight of conflicting public considerations is judicial in quality.”

The majority states “ * * * the function of a City in the 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.” Nowhere within the statutes, quoted as showing authority for a zoning commission to act legislatively, appears language indicative the commission, when zoning a specific tract, has authority to exercise discretion as a legislative function. Although agreeing our decisions prior to Colliver, supra, generally defined municipal zoning as a legislative function, I am unable to agree zoning action which involves fact finding and exercise of discretion by the “legislative” body rightfully can be categorized other than as judicial in nature and result.

A board of adjustment, or review is a quasi-judicial body which exercises quasi-judicial powers. Torrance v. Bladel, 195 Okl. 68 , 155 P.2d 546 ; Okla. City v. Harris, 191 Okl. 125 , 126 P.2d 988 . When a zoning commission acts in respect to a matter within the area reserved for review, and performs exactly as a board of review in re *787 solving a single issue as relates to a specific tract, the zoning commission performs a judicial function rather than legislative action.

My second ground of disagreement arises by reason of the plain language of 12 O.S. 1961 , § 951. In my view a zoning commission’s determination of a rezoning application undeniably involves determination of matters which inherently are judicial in nature and result. Section 951 unequivocally provides an appeal to the district court from any final order of a tribunal, hoard or officer exercising judicial function. To hold now this statute affords no remedy by appeal in zoning cases requires this Court to read into the statute an exception neither expressed nor intended. Under the majority’s conclusion the statute now must he read as authorizing appeals from final judgments in all instances except zoning cases, as to which the only remedy hereafter shall be by resort to the equitable remedy of injunction.

In this respect the rule will be that constitutionality of a zoning ordinance shall be subject to direct challenge in equity. This is, of course, contrary to the settled principle which declares injunctive relief unavailable where adequate remedy at law exists. Under 11 O.S.1961, § 409, a municipality expressly is granted authority to proceed against violation of zoning regulations by instituting appropriate action. However, as intervenors point out, there is no statute conferring a similar remedy upon an aggrieved landowner. Injunctive relief cannot be granted unless all legal remedies have been exhausted, or where there is no adequate remedy at law. A petition which fails to allege exhaustion of legal remedies is demurrable. Caldwell v. Traub, 172 Okl. 12 , 43 P.2d 1047 ; Powell Briscoe, Inc. v. Peters, Okl., 269 P.2d 787 . Because there is no statutory authority for seeking special relief without first exhausting legal remedies, aggrieved landowners in zoning cases may well be found to have rights as to which they have no proper remedy. The trial court’s succinct analysis as to propriety of injunctive relief “ * * * because we have been doing it for 40 years doesn’t make it right” is a masterpiece of understatement, but clearly discloses basis for the judgment.

I dissent.

I am authorized to state BLACKBIRD, J., concurs in the views herein expressed.