In Re the Purchase of the Suntide Inn Motel

*130 SIMMS, Justice,

dissenting:

I respectfully dissent.

The majority’s analysis of the applicability of 11 O.S.1971, § 1420 to the Board of Corrections is based upon the premise that the state is immune from municipal zoning regulations. It is from that starting point that the majority reaches its conclusion that the Board is not subject to § 1420 because “the state” is not specifically mentioned, and the presumption of immunity is therefore not overcome.

I take issue with the validity of the premise that the state has unqualified immunity from zoning regulations. Further, I believe that § 1420 does require the Board to submit its proposed site to the Planning Commission.

The extent to which the use of land by a superior governmental unit is subject to zoning regulations of the host government is before us for the first time. The traditional concept of immunity, which the majority adopts as the resolution of this conflict, is being discarded by other jurisdictions as too simplistic and is being replaced by a “balancing of interests” test. Rutgers, State University v. Piluso, 60 N.J. 142 , 286 A.2d 697 (1972); Long Branch Div. of United Civic & Tax Org. v. Cowan, 119 N.J.Super. 306 , 291 A.2d 381 (1972); Town of Oronoco v. City of Rochester, 293 Minn. 468 , 197 N.W.2d 426 (1972); City of Newark v. University of Delaware, Del. Ch., 304 A.2d 347 (1973); Hillsborough Ass’n for Retarded Citizens, Inc., v. City of Temple Terrace, Fla., 332 So.2d 610 (1976). A comprehensive discussion is found in Note, “Governmental Immunity from Local Zoning Ordinances,” 84 Harv.L.Rev. 869 (1971).

Contrary to the majority’s statements, Rutgers, State University v. Piluso, supra, does not support their adoption of the state immunity concept. Rutgers is the leading case rejecting an automatic finding of immunity and adopting instead the more realistic balancing of interest approach.

The Court observed that:

“The question of what governmental units or instrumentalities are immune from municipal land use regulations, and to what extent, is not one properly susceptible of absolute or ritualistic answer. Courts have, however, frequently resolved such conflicts in perhaps too simplistic terms and by the use of labels rather than through reasoned adjudication of the critical question of which governmental interest should prevail in the particular relationship or factual situation.”

The Court then advanced the following balance of interests test as a means to determine the existence and scope of immunity.

“The rationale which runs through our cases and which we are convinced should furnish the true test of immunity in the first instance, albeit a somewhat nebulous one, is the legislative intent in this regard with respect to the particular agency or function involved. That intent, rarely specifically expressed, is to be divined from a consideration of many factors, with a value judgment reached on an overall evaluation. All possible factors cannot be abstractly catalogued. The most obvious and common ones include the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests. ... In some instances one factor will be more influential than another or may be so significant as to completely overshadow all others. No one, such as the granting or withholding of the power of eminent domain, is to be thought of as ritualistically required or controlling. And there will undoubtedly be cases, as there have been in the past, where the broader public interest is so important that immunity must be granted even though the local interests may be great. The point is that there is no precise formula or set of criteria which will determine every case mechanically and automatically.”

*131 It was under this balancing test that the Court determined that the history of, and statutory enactments regarding Rutgers did show a legislative intent to confer immunity from the townships zoning restrictions.

The Court held, however, that such immunity was not absolute, stating that:

“It is, however, most important to stress that such immunity in any situation is not completely unbridled. Even where it is found to exist, it must not, * * * be exercised in an unreasonable fashion so as to arbitrarily override all important legitimate local interests. This rule must apply to the state and its instrumentalities as well as to lesser governmental entities entitled to immunity. For example, it would be arbitrary, if the state proposed to erect an office building in the crowded business district of a city where provision for off-street parking was required, for the state not to make some reasonable provision in that respect. And, at the very least, even if the proposed action of the immune governmental instrumentality does not reach the unreasonable stage for any sufficient reason, the instrumentality ought to consult with the local authorities and sympathetically listen and give every consideration to local objections, problems and suggestions in order to minimize the conflict as much as possible.”

The Court then found that Rutgers’ proposed use of the land for student housing, which had been presented to township authorities by a variance application, was not unreasonable.

Obviously, the majority makes no attempt to implement the criteria set forth in Rutgers, supra. The Board here is automatically declared immune by virtue of the state’s superior position in the governmental hierarchy, and no opportunity will be afforded for determination of whether the Board has acted unreasonably and arbitrarily in its site selection.

I believe it is important to understand that this conflict is not simply between a city and a state agency attempting to exercise a sovereign power. The Legislature has specifically empowered cities to enact and enforce zoning regulations. 11 O.S. 1971 , § 401, et seq., Oklahoma City v. Barclay, Okl., 359 P.2d 237 (1961). Municipal zoning ordinances enacted pursuant to this statutory authority have the force of legislative enactments. Weaver v. Bishop, 174 Okl. 492 , 52 P.2d 853 (1935). This zoning power is also a sovereign power, and in their exercise thereof, cities are “equally agents of the state.” Note, 84 Harv.L.Rev. 869, 877. See, City of Pittsburgh v. Commonwealth, Pa., 360 A.2d 607 (1976). The Legislature has enabled municipalities to comprehensively plan for, and enforce, their zoning policies through city planning commissions. 11 O.S.1971, § 1411, et seq.

The passage of the City Planning Commission Act shows the Legislature’s awareness of the importance of intelligent land-use planning. Available land is a finite resource and the potential demands which may be placed upon it are infinite. Through the creation of City Planning Commissions, the Legislature gave municipalities a means by which they may attempt to control and direct future growth and land-use in a manner best suited to promote the “health, safety, morals, order, convenience [and] prosperity” of their present and future citizens, through “healthful and convenient distribution of population . . good civic design and arrangement, and wise and efficient expenditure of public funds.” 11 O.S.1971, § 1418.

I believe that the legislative intent of § 1420 is clearly to subject the state and its subdivisions to municipal zoning regulations and procedures. “[N]o street, square, park, or other public way, ground, or open space, or public building or structure, or other government enterprise, shall be constructed or authorized . . . until the location, character and extent thereof shall have been submitted to and approved by the commission.”

I can find nothing in the appropriation bills, H.B. 1737 and 2006, which show an intent to exempt the Board from municipal zoning regulations nor a mandate for any *132 specific site selection. There are no provisions in the Bills which are inconsistent with § 1420, therefore the rules of statutory construction cited by the majority have no application.

I advocate adoption of the balancing of interest test and would do so even in the absence of § 1420. I believe it offers the only reasonable solution to this controversy and to similar controversies which are bound to arise.

There were, at last official count, 1 235 state boards, agencies and commissions. It is unrealistic to assume that all “state” demands upon municipal land which these agencies could potentially make, would be for equally important public purposes or that their site selections would always be reasonable.

Each intergovernmental conflict over land-use will present novel questions regarding the relative interests of the governmental units involved, the reasonableness of the site location, the availability of alternative locations and the adverse consequences which will be suffered by local interests and must be resolved on a case by case basis.

I respectfully suggest that the Board should be required to submit its proposed site to the City Planning Commission for approval, as set forth by § 1420. Appeal may then be had to the City Council (§ 1420) and from there to the District Court (§ 1434). This statutory scheme insures due process of law by providing that all parties have an opportunity to be heard at a meaningful stage in the proceedings.

I am authorized to state that Chief Justice HODGES, Vice Chief Justice LAVENDER, and Justice BERRY concur in the views expressed in this Dissent.

. A Compendium, Boards, Agencies and Commissions in the Executive Branch of the Oklahoma State Government, Prepared by the Oklahoma Legislative Council, 1975.