Opinion
Case No. 116,747
04-18-2019
NORTH COLTRANE COMMUNITY ASSOCIATION, INC., Plaintiff/Appellant, v. BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA COUNTY, Defendant/Appellee, and Stonetown Edmond, LLC, Intervening Defendant/Appellee.
: ¶1 Plaintiff North Coltrane Community Association, Inc. (the Association), appeals the trial court's denial of its motion for writ of mandamus. The Association sought to compel the Board of County Commissioners of Oklahoma County (the Board) to declare as void a special use permit issued in regard to real property (the Property) owned by Defendant Stonetown Edmond, LLC (Stonetown). The special use permit issued by the Board in 1985 allowed the then property owner to develop the Property as a mobile home park. The trial court found that the special use permit was not void by the passage of time and denied the motion for writ of mandamus. The Association appeals. On appeal, the Board moves to dismiss for mootness. We deny Stonetown's motion to dismiss the appeal and reverse the trial court's denial of writ of mandamus.
¶2 On March 21, 1985, in agreement with the recommendation by the Oklahoma County Planning Commission (the Planning Commission), the Board approved Special Use Permit 66-85 (the Permit), which allowed Stonetown's predecessor-in-interest the opportunity to develop the Property as a mobile home park. The Property was originally zoned as AA Agricultural & Rural Residential (A-2), and the Board's approval of the special use permit was necessary to beginning development of the mobile home park. Following the Board's approval of the Permit, however, the Property remained unimproved and undeveloped for thirty years.
¶3 On November 19, 2015, Hiwassee 80, LLC (Hiwassee), purchased the Property and, relying on the Permit, began constructing a mobile home park. On June 15, 2017, the Planning Commission reviewed the status of the Permit. After hearing comments from the Association as to the current compatibility of the Permit with the surrounding zoning districts, the Planning Commission rejected the Association's arguments and recommended that the Board "take no action" and allow the Permit to remain in place.
¶4 The Board scheduled a meeting for August 30, 2017 to take up the Planning Commission's recommendation regarding the status of the Permit. On August 14, 2017, the Association filed suit against Hiwassee and the Department of Environmental Equality (DEQ), seeking a declaratory judgment that the sewage treatment system for the mobile home park was not in compliance with the Permit. With the suit pending, the Board held its meeting on the status of the Permit, where the Association appeared and argued that the use allowed by the Permit (the construction of a mobile home park) was incompatible with surrounding uses (i.e. , the nearby high-end residential neighborhood). Despite the Association's arguments, the Board accepted the Planning Commission's recommendation and "took no action" with regard to the Permit, allowing Hiwassee to continue development of the mobile home park. The Association voluntarily dismissed its suit against Hiwassee and the DEQ the following day.
¶5 The Association then filed suit against Hiwassee and the Board September 19, 2017, seeking a writ of mandamus compelling the Board to declare the Permit void. The Association argued that, according to the Oklahoma County Zoning Regulations effective at the time the Permit was issued—those effective from 1972 to 1991 (the Prior Regulations)—the Permit expired after a year of non-use, i.e. in 1986. Stonetown purchased the Property from Hiwassee on the same day that the Association filed suit and was permitted to intervene as a defendant. The trial court denied the Association's motion January 10, 2018. The Association appeals. ¶6 During the pendency of this appeal, Stonetown filed a motion to dismiss for mootness. In its motion, Stonetown argues this matter is moot because the mobile home park has been substantially completed and this Court is no longer able to render effective relief. With Stonetown's motion to dismiss the appeal having been deferred to the decisional stage, we take up the motion here.
¶7 Pursuant to Oklahoma Supreme Court Rule 1.6(c), the "Court may dismiss an appeal ... either on its own motion or on the motion of the parties at any stage of the appellate process." Rule 1.6(c), Okla. Supreme Ct. Rules, 12 O.S. 2011 Ch. 15, App. 1 (2011). Under this rule, an appeal may be dismissed only on particular grounds, one of which is mootness. Id. An appeal becomes moot when the court is no longer able to grant effective relief and any opinion rendered in the matter would be hypothetical or advisory in nature. Beach v. Okla. Dep't of Pub. Safety , 2017 OK 40, ¶ 16, 398 P.3d 1. In order for an appellate court to render relief, the issues in a case must remain part of a "lively 'case or controversy' between antagonistic demands." State ex rel. Okla. Firefighters Pension and Ret. Sys. v. City of Spencer , 2009 OK 73, ¶ 4 n.13, 237 P.3d 125 (citing Am. Ins. Ass'n v. State Indus. Comm'n , 1987 OK 107, ¶ 6, 745 P.2d 737 ). An appeal will be dismissed as moot if, after the appeal has commenced, circumstances change such that the appellate court can no longer afford effective relief. Id. ¶ 4. The Oklahoma Supreme Court "is the 'final arbiter' of whether this mootness doctrine applies." In re Guardianship of Doornbos , 2006 OK 94, ¶ 2, 151 P.3d 126 (citing Rogers v. Excise Bd. , 1984 OK 95, ¶ 15 n. 18, 701 P.2d 754 ).
¶8 Here, Stonetown argues that this appeal should be dismissed for mootness because the mobile home park has been substantially completed. Stonetown alleges that it has spent approximately $1.72 million on the park since it purchased the property in 2017, and that a total of $2.74 million has been spent since Stonetown's predecessor-in-interest, Hiwassee, first began development. Stonetown alleges that because the Association failed to seek a temporary injunction or stay to maintain the status quo of the development of the park during the pendency of the appeal, the Association is now precluded from seeking relief.
¶9 In support of its argument, Stonetown first cites to Westinghouse Electric Corp. v. Grand River Dam Authority, in which a plaintiff's challenge to the award of a contract was dismissed for mootness. 1986 OK 20, ¶ 1, 720 P.2d 713. In Westinghouse , an electric corporation sought to invalidate a contract between a defendant corporation and the Grand River Dam Authority (GRDA) on the grounds that conflicts of interest existed with regard to members of the GRDA board who considered the bids and awarded the contract. Id. ¶ 2. The Supreme Court determined that because the plaintiff corporation did not seek a temporary injunction preventing performance during the pendency of the controversy, and because the contract had been performed prior to the Court's rendering of a judgment in the appeal, the plaintiff corporation's appeal should be dismissed as moot. Id. ¶ 24. The Supreme Court stated, "If a person seeking injunctive relief does not take advantage of the procedures available for preserving the status quo, and the conduct which is sought to be prevented is thus permitted to take place, we cannot provide any relief." Id.
¶10 Stonetown also cites to White v. City of Pawhuska, 1925 OK 737, ¶¶ 1-2, 113 Okla. 270, 239 P. 578, in which the Supreme Court of Oklahoma determined that an appeal challenging the "letting" of a contract was moot where the temporary injunction had been dissolved and the contract had been "let" during the pendency of the appeal. Similarly, Stonetown points to Wolfe v. Hart's Bakeries, Inc., 1969 OK 175, ¶¶ 7-8, 460 P.2d 950, in which the Supreme Court dismissed as moot an appeal challenging the delivery of checks, wherein no temporary injunction was sought and the checks had been delivered prior to a rendering of judgment in the appeal.
¶11 In citing to the above cases, Stonetown fails to appreciate an important distinction between those cases and the controversy before us. In Westinghouse, White, and Wolfe , the Supreme Court dismissed as moot claims in which the sought injunctive relief had not been preserved during the pendency of the appeal. In those cases, the injunctive relief sought by the plaintiffs had become unavailable through the development of circumstances (e.g. through the performance of a contract) such that a favorable judgment by the Court would not render any relief to the plaintiffs. This is not the reality here.
¶12 The facts in this case more closely resemble those in Howard v. Mahoney , 1940 OK 381, 188 Okla. 89, 106 P.2d 267, in which the plaintiff sought to enjoin the use of adjoining property for purposes noncompliant with relevant zoning ordinances. There, the defendant sought to dismiss the appeal as moot because the noncompliant structure on the adjoining property had already been completed, arguing that the Court could no longer render an effective remedy. Id. ¶ 6. The Supreme Court rejected the defendant's argument, however, noting that the plaintiff not only sought the cessation of construction of the structure, but also the cessation of continued use of the structure for purposes in violation of the zoning ordinances. Id . Noting that "a case will not be dismissed where only one issue may be called moot and there are other issues yet to be determined," the Mahoney court declined to dismiss the appeal for mootness. Id.
¶13 In this case, the Association seeks the remedy of a writ of mandamus—a remedy available only where there is no remedy available at law, by which a court compels an inferior entity to perform its duty. 12 O.S. 2011, §§ 1451, 1452. If granted here, a writ of mandamus would compel the Board to declare the Permit void. Such a declaration acknowledging the voidance of the Permit would render the current mobile home park development noncompliant with current zoning regulations. As in Mahoney, the relief that would be provided by the writ, therefore, is not necessarily the cessation of the mobile home park's development, but the prevention of continued use of the Property in violation of current zoning regulations. Furthermore, Oklahoma law does not allow a property owner to "circumvent, or obtain an exception to, zoning ordinances by putting himself in a position ... wherein their enforcement will have a harsh, or detrimental, effect on him ...." In re Pierce's Appeal , 1959 OK 209, ¶ 4, 347 P.2d 790. Because a valid remedy remains available in this controversy, and because a defendant cannot spend its way around compliance with the law, we hold that this appeal is not moot and deny Stonetown's motion to dismiss this appeal.
¶14 We next address the merits of the appeal and determine whether the trial court improperly denied the Association's Motion for Writ of Mandamus. The Oklahoma Statutes provide:
The writ of mandamus may be issued by the Supreme Court or the district court, or any justice or judge thereof, during term, or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its functions, it cannot control judicial discretion.
12 O.S. 2011 § 1451.
¶15 "The issuance of a writ is addressed to the sound discretion of the trial court." Boyer v. State Bd. of Exam'rs of Psychologists, 1992 OK CIV APP 80, ¶ 12, 834 P.2d 450 (citing Fears v. Cattlemen's Inv. Co. , 1971 OK 22, ¶ 31, 483 P.2d 724 ). Unless the judgment of the trial court is arbitrary, capricious, or an abuse of discretion, its determination must not be disturbed. Id. (citing Dale v. City of Yukon , 1980 OK CIV APP 55, ¶ 12, 618 P.2d 954 ). "An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Christian v. Gray , 2003 OK 10, ¶ 43, 65 P.3d 591. A writ of mandamus may lie where the party seeking the writ has a "clear legal right to the relief sought," the respondent has "a plain legal duty in which the exercise of discretion is not implicated," and there is no adequate remedy at law. Colclazier v. State ex rel. Okla. Indigent Def. Sys. Bd. , 1997 OK 161, ¶ 6, 951 P.2d 622. The party seeking mandamus has the burden of showing that it is has a clear legal right and that the defendant has a plain legal duty. Chandler (U.S.A.), Inc. v. Tyree , 2004 OK 16, ¶ 25, 87 P.3d 598 (citing Lee v. Myles , 1964 OK 56, ¶ 8, 390 P.2d 489 ).
¶16 We first consider whether the Association has demonstrated it has a "clear legal right" to have the Board declare the Permit void. The Association argues that it has such a right because its members have a particularized interest in the Property being developed according to the relevant zoning regulations. The Board and Stonetown argue that no such right exists and the Association misconstrues the regulations.
¶17 The existence of a "clear legal right" in this case hinges upon the interpretation of the zoning regulations effective at the time the Permit was issued. "The meaning of an ordinance, like that of a statute, is to be divined from the language found in its text." Tinker Inv. & Mortg. Corp. v. City of Midwest City , 1994 OK 41, ¶ 13, 873 P.2d 1029. Where the language of an ordinance is ambiguous, we give deference to the construction given by the body charged with its execution. Elliott v. State ex rel. Kirkpatrick , 1931 OK 320, ¶ 10, 150 Okla. 275, 1 P.2d 370.
¶18 The Oklahoma County Zoning Regulations effective from 1972-1991 (the Prior Regulations) stated, in relevant part:
The building permit authorizing the "Special Use" shall become void under the following Conditions:
1. Failure of the applicant to comply with all of the general and special requirements established by the Board of County Commissioners as a basis for authorizing the "Special Use".
2. Any change in the "Special Use" from that specifically authorized.
3. A discontinuance of the "special use" for one year.
4. Failure to use the building permit within one year.
Oklahoma County, Zoning Regulations Art. V. § 2(d) (effective 1972-1991).
¶19 The Board and Stonetown assert that the Board has interpreted the Prior Regulations so that the term "building permit" is distinct from "special use permit," such that only an underlying building permit, not the associated special use permit, would become void after one year of non-use. The respondents argue that we should give deference to the Board's interpretation. The Board and Stonetown fail, however, to demonstrate the Board ever interpreted the Prior Regulations. In fact, the Board admits that when considering the continued validity of seventeen (17) special use permits—including the Permit at issue here—at a 2017 meeting, the Board considered the continuation of the permits pursuant to the current zoning regulations, not those effective in 1985. The Board's 2017 review of the Permit therefore does not constitute an interpretation of the Prior Regulations.
At oral argument the Board asserted that internal comments made by staff regarding the meaning of the Prior Regulations constituted interpretation thereof. We disagree. Looking to instances in which deference was given to an enacting body for interpretation of its own rules, case law indicates that deference is given only to interpretations that are specific and bear the weight of authority. See, e.g., Oral Roberts Univ. v. Okla. Tax Comm'n , 1985 OK 97, ¶¶ 6-7, 20, 714 P.2d 1013 (giving deference to agency opinions expressed in a letter from the Director of the Sales Tax Division, Oklahoma Tax Commission, and in recorded proceedings before the Commission); Tinker Inv. & Mortg. Corp. v. City of Midwest City , 1994 OK 41, ¶ 14, 873 P.2d 1029 (finding that a City administrator interpreted ordinances enacting a "pay-back program" by repeatedly administering the policy in a uniform manner, but holding that the administrator's interpretation was absurd).
¶20 Stonetown further argues that the language of the current zoning regulations is evidence of the Board's interpretation of the Prior Regulations. Under current regulations, the Board has discretion to revoke a Special Permit where it can be shown that the special use is no longer compatible with the uses of the surrounding land. Stonetown contends that because the current regulations require affirmative action by the Board in order to revoke a special use permit, the Prior Regulations also impliedly required such affirmative action.
¶21 Where a statute is ambiguous and an amendment is made which construes and clarifies prior language, a court should accept the amendment as legislative intent as to the meaning of the previous ambiguous language. Gentry v. Berry Mach. & Tool Co. , 2012 OK CIV APP 12, ¶ 15, 274 P.3d 845 (citing Quail Creek Golf and Country Club v. Okla. Tax Comm'n , 1996 OK 35, ¶ 10, 913 P.2d 302 ). An amendment will not be considered, however, where the previous statute is not ambiguous. Id. While the previous language in this case was ambiguous regarding the term "building permit," the Prior Regulations were not ambiguous as to the Board's role in revoking a permit unused for one year. The Prior Regulations stated that such a permit "shall become void" upon the occurrence of certain conditions. This language is not ambiguous regarding the nondiscretionary nature of an unused permit's expiration. We therefore hold that the amendment to the zoning regulations requiring affirmative action by the Board in revoking a special use permit was not a clarification of previously ambiguous language and will not be considered in interpreting the Prior Regulations.
¶22 Because the Board has not interpreted the Prior Regulations, we construe the disputed provision of the Prior Regulations according to its plain text and traditional rules of statutory construction. The disputed language states: "The building permit authorizing the "Special Use" shall become void under [certain conditions]." In arguing the term "building permit" was intended to have a distinct meaning from "special use permit," the Board refers to Article VIII of the Prior Regulations, titled "Building Permits," which discusses the process to obtain a permit for the construction of a building or structure.
¶23 Traditional canons of statutory construction provide where the same words or terms are used in multiple places within a statute, we will presume those words to have the same meaning throughout, unless there is clear legislative intent to the contrary. Walton v. Donnelly, 1921 OK 258, ¶ 10-13, 83 Okla. 233, 201 P. 367. "A statute will be given a construction, if possible, which renders every word operative, rather than one which makes some words idle and meaningless." Estes v. ConocoPhillips Co., 2008 OK 21, ¶ 16, 184 P.3d 518. "Legislative purpose and intent may also be ascertained from the language in the title to a legislative enactment." McIntosh v. Watkins, 2019 OK 6, ¶ 4, 441 P.3d 1094.
¶24 If we were to accept the Board and Stonetown's interpretation of the Prior Regulations, we would need to conclude the Board intended Stonetown's predecessor be required to obtain a separate "building permit"—in addition to the already issued Special Use Permit—before initiating development of the Property. No such building permit was obtained, nor will one likely ever be obtained, as the nature of modular homes is such that no on-site building is required. Further, the Board and Stonetown's interpretation would suggest that the building permit, not the special use permit, would officially "authorize" the Special Use of the Property. Such an interpretation would effectively render the special use permits under Article V pointless. We will not favor an interpretation that renders words idle or meaningless, much less one which renders an entire article ineffective.
¶25 Instead, drawing from the language of Article V and from the headings therein, we conclude that the words "building permit" in the disputed provision were meant to refer to a "Special Use Permit" issued pursuant to that Article. In the next subsection, the regulations provide a list of "buildings and uses for which such special permits may be issued," including: public buildings, hospitals, cemeteries, airports, miniature golf courses, and trailer or tourist courts (i.e. mobile home parks). Looking to this language, it is reasonable to conclude that the enacting body considered specific types of buildings to be a "special use" for which a "Special Use Permit" could be issued. With this in mind, it appears likely that a permit for a "special use" and a permit for a "special building" would be governed by the same provisions, and correlating language might be used interchangeably. Further, the disputed provision's place in the regulations (located in Article V, "Non-Conforming Uses, Exceptions and Special Permits," Subsection 2, "Special Permits") suggests that the language contained therein would be germane to those headings. The process for obtaining a building permit of the type to which the Board and Stonetown refer—the type necessary to construct a structure—is addressed by an entirely different article (Article VIII, "Building Permits"). We conclude that the words "building permit" in Article V, Section 2(d) were intended to refer to a "special use permit" issued pursuant to Article V of the Prior Regulations.
¶26 Owners of real property have a particularized interest in ensuring that neighbors comply with relevant regulations and zoning ordinances. See Mahoney , 1940 OK 381, ¶ 9, 188 Okla. 89, 106 P.2d 267 (allowing continuation of a suit by a property owner seeking to enjoin her neighbors from continued use of the adjacent property in violation of zoning ordinances); Bird v. Willis , 1996 OK 116, ¶ 23, 927 P.2d 547 (stating that parents of children residing in a school district had standing to challenge the issuance of a license to a liquor store in the district, which had allegedly been issued in contravention of regulations). This particularized interest gives rise to a property owner's clear legal right to ensure that a regulating body enforces its own zoning regulations. The Association, on behalf of its members, has a clear legal right to ensure that the Board observed proper regulatory procedure in maintaining or revoking the Permit, which they did not do here.
¶27 In concluding that the Prior Regulations created a "clear legal right" for the Association to have the Permit recognized or declared void, we also conclude that the Board had a "plain legal duty" to declare the Permit void, where the voidance of the Permit was not discretionary. The disputed provision in the Prior Regulations stated that a special use permit that is unused within one year "shall become void." Generally, the use of the word "shall" indicates a mandatory directive, leaving no room for discretion. Keating v. Edmondson , 2001 OK 110, ¶ 13, 37 P.3d 882. Further, because the Permit became void by operation of the statute, and not by an affirmative action of the Board, the Board had no authority to "take no action" and allow the Permit to continue. Instead, it was the Board's plain duty to take notice of the prior voidance of the Permit and require Stonetown to follow the necessary procedures to comply with current zoning regulations.
¶28 We lastly address the unavailability of an adequate legal remedy to the Association. A writ of mandamus may be issued only where it can be shown there is no adequate legal remedy available to the party seeking the writ. Colclazier , 1997 OK 161, ¶ 6, 951 P.2d 622. Stonetown argues that the Association had an available legal remedy by way of an appeal to a district court. Stonetown's argument hinges upon the classification of the Board's "take no action" vote as a quasi-judicial action. The Association asserts, however, that the vote was ministerial or administrative in nature.
¶29 Stonetown asserts that the Association has access to the legal remedy of an appeal of the Board's "take no action" vote under the procedure provided in Section 431 of Title 19 of the Oklahoma Statutes, which states: "From all decisions of the board of commissioners, upon matters properly before them, there shall be allowed an appeal to the district court by any persons aggrieved ...." 19 O.S. 2011 § 431. The Supreme Court has limited the availability of an appeal under this statute to include the appeal of only quasi-judicial decisions. Groenewold v. Bd. of Comm'rs of Kingfisher Cty, 1945 OK 165, ¶ 9, 195 Okla. 526, 159 P.2d 258. Direct appeals to a district court are not available for actions by a board of commissioners which are "administrative, legislative, or political in nature." Id.
¶30 The Oklahoma Supreme Court has stated that a board exercises a legislative function when zoning and rezoning. Gregory v. Bd. of Cty Comm'rs of Rogers Cty , 1973 OK 101, ¶ 8, 514 P.2d 667. The Supreme Court has further held that a board of adjustment's decision regarding an application for a zoning variance or conditional use is an exercise of a quasi-judicial power. Osage Nation v. Bd. of Comm'rs of Osage Cty. , 2017 OK 34, ¶ 49, 394 P.3d 1224 ; Mustang Run Wind Project, LLC v. Osage Cty . Bd. Of Adjustment , 2016 OK 113, ¶ 29, 387 P.3d 333. ¶31 The Association asserts that the Board's duty to declare the Permit void as a function of the Prior Regulations is either a ministerial or administrative function. The distinction between a ministerial and judicial function is that where the law describes the duty to be performed such that there is no exercise of discretion necessary, that action will be considered ministerial. Bd. of Educ. of Town of Owasso v. Short , 1923 OK 136, ¶ 26, 89 Okla. 2, 213 P. 857. The result of a ministerial act may not be appealed under 19 O.S. § 431. Appeal of Trippet , 1940 OK 207, ¶ 3, 187 Okla. 242, 101 P.2d 1058. A board's action is considered administrative where it exercises discretion granted by statute or regulation. Groenewold , 1945 OK 165, ¶ 10, 195 Okla. 526, 159 P.2d 258. Administrative actions are not appealable under 19 O.S. § 431 because, "under the Constitution, the courts cannot exercise purely administrative ... powers." Id. ¶ 9.
¶32 For reasons previously discussed, the Board had no discretion in performing its duty to declare the permit void by operation of the Prior Regulations. The Board's refusal to recognize the previous automatic expiration of a special use permit is distinct from a board's decision to zone, rezone, or grant a zoning variance, where in this case the Board was not amending or construing regulations. As such, the Board's act was not legislative or quasi-judicial in nature. We hold that the Board's refusal to perform its duty was a refusal to exercise its proper ministerial function. Because an appeal under 19 O.S. § 431 will not lie from a ministerial act, we further hold that the Association had no adequate remedy at law.
¶33 There is no evidence in the record that the Board interpreted the disputed provision of the Prior Regulations. We therefore interpret the provision according to the plain text and traditional canons of statutory construction and hold that the provision provides that a special use permit will automatically expire after one year of non-use. Because property owners have a right to ensure neighbors adhere to relevant zoning regulations, we hold that the Association has a clear legal right to require the Board to declare the Permit void and require Stonetown to follow the proper regulatory procedures. Further, because the Prior Regulations did not allow the Board any discretion in voiding an expired special use permit, we hold that the Board had a plain legal duty to recognize the Permit as void. The Board's refusal to perform its plain legal duty was a ministerial act. As such, the Association had no right to an appeal under 19 O.S. § 431 and therefore had no adequate legal remedy. For all these reasons, we hold that the trial court's denial of the Association's Motion for Writ of Mandamus was contrary to law and an abuse of discretion. We reverse the trial court's decision and order that a writ of mandamus issue requiring the Board to rescind its "take no action" vote and declare the Permit void.
¶34 REVERSED.
GOREE, C.J., and JOPLIN, P.J., concur.