Appeal of Moreland

1972 OK 87, 497 P.2d 1287, 1972 Okla. LEXIS 488
CourtSupreme Court of Oklahoma
DecidedJune 6, 1972
DocketNo. 43656
StatusPublished
Cited by4 cases

This text of 1972 OK 87 (Appeal of Moreland) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Moreland, 1972 OK 87, 497 P.2d 1287, 1972 Okla. LEXIS 488 (Okla. 1972).

Opinion

LAVENDER, Justice.

This case was commenced in the District Court of Tulsa County by the filing, by the appellants herein, of a notice of appeal from an order of the Board of Adjustment of the City of Tulsa.

A certificate attached to the notice stated that such a notice of appeal had also been filed with the clerk of that board and with the city clerk, as provided in the statute now appearing as 11 O.S.1971 § 408. We assume that, as required by that statute, the original, or certified copies, of all of the papers constituting the record in the case before that board, including the order in question, were transmitted to the court clerk and filed in the case.

The appeal to this court is from an order of the district court overruling the appellants’ motion for summary judgment and sustaining a motion for summary judgment by an intervenor, Bill Olson, who was the applicant for the board’s order in question. Based thereon, the court also rendered judgment for Olson affirming the board’s order, denying and dismissing the appeal, and awarding costs.

A copy of the board’s order is not included in the record on appeal to this court, as designated by the appellants. The order itself is not directly involved in this appeal.

The notice of appeal to the district court, and the intervenor’s answer thereto, alleged that the board’s order approved Olson’s application and plans for a “community development project” for the development and use of a described 30-acre tract of land in the City of Tulsa as a mobile home addition with retail shopping center. The notice of appeal, and Olson’s answer, alleged that the order was expressly made under authority of Ordinance No. 9844 of the City of Tulsa, later codified as Section 18 of Title 42 of the ordinances. Hereinafter, the ordinance is called the “CDP ordinance.” An allegedly true copy of the ordinance is attached to, and made a part [1289]*1289of, the notice of appeal, and intervenor tacitly admits the correctness of the copy.

In the notice of appeal, the appellants alleged that the CDP ordinance is invalid for a number of reasons, thus depriving the order of any validity.

The appellants also alleged that the board’s order does not comply with the requirements of the CDP ordinance. And, in an amendatory instrument, filed in the case six days after filing the notice of appeal to the district court, they sought injunctive relief against any action by the board based upon that order. However, those matters are not involved in this appeal, since the appellants confine their argument to attacks upon the validity of the CDP ordinance. In effect, they concede that, if the ordinance is valid, the order of the board is valid, and the trial court should be affirmed.

Omitting the procedural provisions contained in paragraphs (b), (c), (d) and (e) thereof, the CDP ordinance provides :

“Any person, corporation, partnership, association or combination thereof, owning or possessing a property right or interest in or to a tract of land not less than 10 acres in size may utilize said land as a community development project under the terms, conditions and provisions herein set forth.
“(a) Community Development Project Defined: A community development project for the purpose of this ordinance is a tract of land not less than 10 acres in size used primarily for residential purposes which may include thereon compatible accessory uses such as garages, storage spaces, convenience shopping, personal service and recreational facilities.
(( # * ⅜
“(d) Board of Adjustment — Procedure: * * * The Board of Adjustment, in addition to the powers hereby delegated to it, and with regard to a community development plan, shall:
“(1) Prescribe appropriate height, area, use and yard limitations of lands and structures in a community development project. The Board may modify applicable height, area, use and/or yard limitations of the zoning or use district in which said lands or structures are located; provided, however, that the gross area of the community development project, divided by the number of dwelling units within the project, shall equal not less than the square feet per dwelling unit required in the zoning or use district in which such project is located; provided further that if no residential density requirement exists in the zoning or use district in which said community development project is located, the residential density requirements of the U-2C district shall be applied.
“(2) Limit the use of a name plate for an establishment, activity or facility within a community development project to a gross surface area not greater than two (2) square feet or allow the name of a building to be placed thereon when such is an integral part of an outside wall of said building. The Board of Adjustment may further authorize the use of any sign, billboard or advertising materials otherwise permitted in the zone or use district in which said community development project is located.
“(3) Require adequate off-street parking facilities to serve the community development project.
“(4) Establish traffic, lighting, noise or other non-residential activity controls to insure that facilities and activities within the community development project will not adversely affect abutting residential properties.
"(e) * * *'
“(f) Standards: A community development project shall conform to and be consistent with the intent and purposes of the zoning ordinances of the City of Tulsa and the comprehensive plan for the development of the Tulsa Metropolitan Area and the City of Tulsa, Oklahoma.”

[1290]*1290Concerning procedure, paragraphs (b), (c), (d) and (e) of the CDP ordinance provide:

“(b) Submission of Plan to Board of Adjustment: Application for the approval of a community development plan shall be filed with the Board of Adjustment of the City of Tulsa, and upon payment of fees prescribed by said Board said application shall, within three (3) days thereafter, be transmitted to the Tulsa Metropolitan Area Planning Commission for review and recommendation.”
“(c) Tulsa Metropolitan Area Planning — Procedure: Within thirty (30) days after said plan has been filed with the Board of Adjustment, and after notice and public hearing, the Tulsa Metropolitan Planning Commission shall make and report to the Board of Adjustment its findings and/or recommendations with regard to said plan.”
“(d) Board of Adjustment — Procedure: The Board of Adjustment shall, after notice and public hearing, and at its next regular or special meeting, and after the requirements of said notice are satisfied, conduct a public hearing on the proposed community development project, and after consideration may approve, reject or take other action deemed appropriate with regard to said plan. * * * ."

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sand Springs Materials LLC v. City of Sand Springs
2010 OK CIV APP 128 (Court of Civil Appeals of Oklahoma, 2010)
Bankoff v. Board of Adjustment
1994 OK 58 (Supreme Court of Oklahoma, 1994)
Application of Volunteers of America
1988 OK 8 (Supreme Court of Oklahoma, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
1972 OK 87, 497 P.2d 1287, 1972 Okla. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-moreland-okla-1972.