Warden v. City of Grove

44 F. Supp. 3d 1098, 2014 U.S. Dist. LEXIS 118747, 2014 WL 4244294
CourtDistrict Court, N.D. Oklahoma
DecidedAugust 26, 2014
DocketCase No. 13-CV-0398-CVE-PJC
StatusPublished

This text of 44 F. Supp. 3d 1098 (Warden v. City of Grove) is published on Counsel Stack Legal Research, covering District Court, N.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warden v. City of Grove, 44 F. Supp. 3d 1098, 2014 U.S. Dist. LEXIS 118747, 2014 WL 4244294 (N.D. Okla. 2014).

Opinion

[1101]*1101 OPINION AND ORDER

CLAIRE V. EAGAN, District Judge.

Now before the Court is Defendant City of Grove’s Motion for Summary Judgment and Dismissal and Brief in Support (Dkt. # 42). Plaintiff has alleged five counts in his complaint: • (1) that he was retaliated against for exercising his right to free speech in violation of the First Amendment, (2) that a municipal code provision violates his right to substantive and procedural due process under the Fourteenth Amendment, (3) that a municipal code provision violates his right to equal protection under the Fourteenth Amendment, (4) that a municipal code provision violates the Due Process Clause of the Oklahoma Constitution, and (5) that a municipal code provision violates the laws of the State of Oklahoma. Dkt. # 2.

I.

The following facts are undisputed.1 Defendant the City of Grove, Oklahoma, (Grove) “is a municipal corporation organized and existing under the laws of the State of Oklahoma.” Dkt. #2, at 1; see also Dkt.-# 9, at 1. Plaintiff is a real estate investor who owns and develops mobile home parks. Dkt. # 54-6, at 2. Plaintiff purchased a twenty-acre 'parcel of undeveloped land approximately eight years ago. Dkt. #42-1, at 4, 13-14. That parcel is zoned “Lake Front Resort” (LFR). Dkt. # 2, at 2-3; Dkt. # 9, at 2. Mobile homes and mobile home parks may be built on property zoned LFR. Dkt. # 54-3, at 7. Plaintiff attempted to begin developing his parcel in approximately December 20122 and intended to place mobile homes on the parcel. Dkt. # 42-1, at 5-6, 12. Additionally, at approximately the same time, plaintiff allowed a dilapidated mobile home to be placed onto the property. Dkt. # 42-1, at 8-9. Grove officials requested that plaintiff remove the mobile home, and plaintiff removed the mobile home. Id. at 11; Dkt. # 56-1, at 11.

“For the purpose of promoting health, safety, morals, or the general welfare of the community, a municipal governing body may regulate and restrict ... the location and use of buildings, structures and land for trade, industry, residence or other purposes.” Okla. Stat. tit. 11, § 43-101. The powers conferred by section 43-101 are zoning powers. See id. § 44-101. “In order to avail itself of the powers conferred by this article, the municipal governing body shall appoint a commission to be known as the zoning commission to recommend the boundaries of the various original districts and to recommend appropriate regulations to be enforced therein.” Id. § 43-109. If a municipality exercises its zoning powers, its governing body must provide for the appointment of a board of adjustment. Id. § 44-101. Boards of adjustment have the power to:

1. hear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance;
2. hear and decide special exceptions to the zoning ordinance to allow a use, or a [1102]*1102specifically designated element associated with a use, which is not permitted by right in a particular district because of potential adverse effect, but which if controlled in the particular instance as to its relationship to the neighborhood and to the general welfare, may be permitted by the board of adjustment, where specifically authorized by the zoning ordinance, and in accordance with the substantive and procedural standards of the zoning ordinance;
3. authorize in specific cases a variance from the terms, standards and criteria that pertain to an allowed use category within a zoning district as authorized by the zoning ordinance when such cases are shown not to be contrary to the public interest if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done; provided, however, the board shall have no power to authorize variances as to use except as provided by paragraph 4 of this section;
4. hear and decide oil and/or gas applications or appeals unless prohibited throughout a municipality by municipal ordinance. The board of adjustment shall be required to make the findings prescribed by Section 44-107 of this title in order to grant a variance as to use with respect to any such application or appeal.

Id. § 44-104.

Grove’s City Planning Commission (Planning Commission) acts as Grove’s zoning commission. Grove, Okla., City Code § 12-112 (2012). It has the power to “prepare and recommend to the city council zoning district boundaries and appropriate regulations relating to ... the location and use of buildings, structures, and land for trade, industry, residences, and other purposes.” Id. Grove has provided for the appointment of a board of adjustment. Id. § 12-201. Grove’s Board of Adjustment (Board of Adjustment) has the power “[u]pon appeal to decide any question involving the interpretation of any provision of these Regulation [sic],” “[t]o hear and decide special exceptions to the terms of these Regulations,” “[t]o vary or adapt the strict application of any of the requirements hereunder in the case of exceptionally irregular, narrow, shallow or steep lots, or other exceptional physical conditions,” and “[t]o hear and decide appeals where it is alleged that there is an error of law in any order, requirements, decision, or determination made by an administrative official in the enforcement of these regulations.” Zoning Ordinance of the City of Grove § 8-1. Plaintiff was, at one time, a member of the Planning Commission. See e.g., Dkt. # 42-21, at 2.

It is undisputed that prior to October 16, 2012, the Grove City Code included a provision requiring a developer wishing to place mobile homes upon a parcel to poll nearby real property owners. Grove, Okla., City Code § 5-1004 (2011). Unless seventy-five percent of the property owners within a 300-foot radius of the parcel agreed to the placement of the mobile homes, no permit for placing mobile homes on the parcel was to be issued. Id. § 5-1006. On October 16, 2012, Grove adopted Ordinance No. 657. Grove, Okla., Ordinance No. 657 (October 16, 2012). City officials believed that it was unclear whether Ordinance No. 657 repealed the polling requirements. E.g., Dkt. #42-4, at 4-5.

Plaintiff spoke with Grove officials regarding his development plans. Dkt. # 42-1, at 8. On January 16, 2013, Brandon Watkins, Grove’s City Attorney, sent plaintiff a letter stating that he was aware that plaintiff wished to place mobile homes on his twenty-acre parcel. Dkt. #42-5. [1103]*1103The letter also included copies of certain Grove ordinances with which Warden believed plaintiff would be required to comply. Id. The attached ordinances included Grove, Okla., City Code §§ 5-1004 to 5-1006 (2012). Dkt. #42-5. Although plaintiff believed that he was not required to satisfy the polling requirement, he nonetheless attempted to do so. Dkt. # 42-1, at 16. Plaintiff did not poll all of the adjacent homeowners and did not garner the support of seventy-five percent of the adjacent homeowners. Id. at 21-22.

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Cite This Page — Counsel Stack

Bluebook (online)
44 F. Supp. 3d 1098, 2014 U.S. Dist. LEXIS 118747, 2014 WL 4244294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warden-v-city-of-grove-oknd-2014.