Freedom Ranch, Inc., Application of

Freedom Ranch, Inc., Application of
1994 OK CIV APP 13
878 P.2d 380
65 OBJ 2722
Case Number: 79170
Decided: 02/01/1994

IN THE MATTER OF THE APPLICATION OF FREEDOM RANCH, INC., AN OKLAHOMA NON-PROFIT ORGANIZATION. FREEDOM RANCH, INC., APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE CITY OF TULSA, APPELLEE, and TWENTY FIRST PROPERTIES, INC., INTERVENOR, APPELLEE, CHARLENE CHANCELLOR, RADIO, INC., BALCOR PROPERTY MANAGEMENT, INC., DOWNTOWN TULSA, UNLIMITED, INC., AND GENEVIEVE ROGERS, INTERVENORS AND APPELLEES.

Appeal from the District Court of Tulsa County; Robert J. Scott, Judge.

AFFIRMED

John W. Moody, William J. Doyle III & Associates, Tulsa, for appellant.
Alan Jackere, Asst. City Atty., Tulsa, for appellee, City of Tulsa.
Roy D. Johnsen, Epperson & Johnsen, Tulsa, for appellee, Twenty First Properties, Inc.
Brian R. Huddleston, Brune, Pezold, Richey & Lewis, Tulsa, for intervenors, Charlene Chancellor, Radio, Inc., Balcor Property Management, Inc., Downtown Tulsa, Unlimited, Inc., and Genevieve Rogers.

OPINION

BAILEY, Judge

¶1 Freedom Ranch, Inc. (FRI) seeks review of the Trial Court's judgment, after hearing de novo, affirming the denial of FRI's request for a special zoning exception by the Board of Adjustment of the City of Tulsa (City). In this appeal, FRI challenges the constitutionality and validity of City's zoning scheme and application thereof to FRI's property.

¶2 FRI operates a facility

¶3 City's zoning code specifically lists "convict pre-release center" as a Use Unit 2 permitted to operate in the Central Business District only if granted a special exception by the Board of Adjustment. On the other hand, "residential treatment centers" and "transitional living centers" are classified Use Unit 5 permitted within the Central Business District without necessity of a special exception. In 1987, City evidently issued FRI a zoning clearance permit to operate the facility as a Use Unit 5 "transitional living center."

¶4 In 1991, however, and apparently after inspection by a City Code Enforcement Officer, City notified FRI that FRI must apply for a special exception to operate as a Use Unit 2 "convict pre-release center." After hearing, City's Board of Adjustment upheld the decision of the Code Enforcement Officer, determining that FRI's facility fell under the definition of a Use Unit 2 convict pre-release center and denying FRI's application for special exception. FRI appealed to the Trial Court which also denied FRI's application for special exception. FRI appeals.

¶5 FRI first challenges the constitutionality of City's zoning code as denying the equal protection guarantees of both the Oklahoma and United States Constitutions. In support of this proposition, FRI alleges City's unsubstantiated negative attitudes toward and/or fear of FRI's operation of its facility, serving as a basis for according different zoning treatment to essentially the same types of proposed use, denies FRI equal protection.

¶6 We indulge a presumption of validity of municipal zoning ordinances and regulations.

¶7 The record herein reveals City adduced evidence of the orderly development of its Central Business District in accordance with the provisions of its Comprehensive Plan which includes the area in which FRI's facility is located. We hold the orderly development of the Tulsa Central Business District constitutes a legitimate City interest, and find City's denial of FRI's application for zoning exception rationally related to that interest.

¶8 FRI also complains City's zoning ordinance is unconstitutionally vague,

¶9 Finally, FRI complains the Trial Court erred in finding that permitting FRI's request for a special zoning exception would be contrary to the public interest, arguing compatibility of FRI's use of the property with the basic use authorized within the area zoned, and that actual evidence of detriment, not subjective fears, must be presented in opposition to the exception.

¶10 In the present case, the record reveals location of FRI's facility within Opportunity Site 3 of City's Comprehensive Plan, a site within the Central Business District possessing great redevelopment potential and expectations of extensive redevelopment of the area for office and residential use. Further, City adduced evidence that numerous "clients" of FRI had been involved in "serious incidents" requiring reports to the Department of Corrections. Finally, City proffered evidence that the value of the surrounding property had, in fact, been adversely affected by the FRI facility. We therefore find evidence in the record demonstrating that the approval of FRI's application for special exception would not promote "the development of the community in accordance with a comprehensive plan"

¶11 These proceedings are equitable in nature and, as such, the judgment of the Trial Court will not be disturbed unless against the clear weight of the evidence.

¶12 The order of the Trial Court is therefore AFFIRMED.

¶13 GARRETT, V.C.J., and HUNTER, P.J., concur.

Footnotes:

1 FRI first leased, then purchased, the facility from Intervenor Twenty First Properties, Inc.

2 See, City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (zoning ordinance requiring special use permit for group home for mentally retarded while not requiring same for other "group" facilities violates equal protection clause); Bannum, Inc. v. City of Louisville, KY, 958 F.2d 1354 (6th Cir. 1992) (requirement that "community training center" receive special use permit because of City's fear, without supporting data, that persons living therein are more likely to commit a crime held invalid).

3 Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926).

4 Jacobs, Visconi & Jacobs v. City of Lawrence, 927 F.2d 1111 (10th Cir. 1991) (purpose of retaining vitality of downtown retail area sufficient to deny application to rezone residential land to develop suburban shopping mall); Mahoney v. City of Chicago, 9 Ill. 2d 156, 137 N.E.2d 37 (1956) (zoning ordinance restricting funeral homes to business district while allowing other businesses permissible in areas zoned for apartments held reasonable and within legislative discretion).

5 See Jacobs, Visconi & Jacobs, 927 F.2d at 1119.

6 We also note City adduced evidence, albeit controverted, that FRI posed a legitimate crime threat to the area, and that property values in the vicinity had fallen as a result of FRI's presence.

7 Citing, inter alia, City of Independence v. Richards, 666 S.W.2d 1, 7 (Mo. App.) (zoning ordinances must operate uniformly and avoid arbitrary enforcement).

8 Citing Application of Volunteers of America, 749 P.2d 549 (Okl. 1988) (reversing denial of zoning variance on grounds the lower court considered too large a "neighborhood", and that such a denial may not be based on potential adverse effects on the neighborhood).

9 Tulsa, Ok.Rev.Ord. tit. 42 ch. 16 § 1608.3; Application of Volunteers of America, 749 P.2d at 551 (citation omitted).

10 Tulsa, Ok.Rev.Ord. tit. 42 ch. 16 § 101.A.

11 Tulsa, Ok.Rev.Ord. tit. 42 ch. 16 § 101.A.

12 City, Ok.Rev.Ord. tit. 42 ch. 16 § 1608.3; Application of Volunteers of America, 749 P.2d at 551 (citation omitted).

13 Application of Volunteers of America, 749 P.2d at 552 (citation omitted).