*1 125 J., BERRY, HODGES, C. BARNES Indemnity Fund v. Special In facts.3 SIMMS, JJ., concur. Acuff, court (Okl.1963) this 383 P.2d 630 joint petition award found in a facts held LAVENDER, J., V. C. and WILLIAMS subsequent in a competent evidence are IRWIN, JJ., concur result. against injured employee an proceeding Fund; although not findings, and such prima the Fund are binding on necessarily evidence and unless Fund offers

facie fact they stand. The State contrary must found joint petition

Industrial occupa- to an injury suffered due

claimant disease. hearing against At

tional Fund, evidence offered to the con- no was re the Purchase of Matter of the ap- with this Accordingly we deal trary. MOTEL, SUNTIDE OKLAHOMA INN against pursuant claim the Fund as a peal CITY, Oklahoma, by of Okla the State occupational based on an dis- an award acting through homa the State Board ease. De on behalf of the Oklahoma Affairs Hatchel, Company v. Tubescope In AMF partment of Corrections. we 85 (Okl.1976) P.2d 374 held O.S.1971 No. 50588. provides a claim must filed for compensation occupational an disease Supreme Court of Oklahoma. eighteen within months from date of exposure. last hazardous Section April 1977. year applied rather the one stat- than Rehearing 9,May Denied 1977. prescribed by 85 O.S.1971 limitations ute 43. specific nois statute of limita

There spelled creating out our statutes

tions controlling Special Indemnity Liability purely deriva

Fund.4 Fund original against from the award

tive of limi employer.5 statute

claimant’s original claim is applicable

tations subsequent claim applicable

also

against the Fund.6 properly

The State Industrial Court pre compensation to claimant as

awarded

viously impaired person, by of his reason injury adjudicated back disa

previous resulting occupational dis

bilities Fund, against being This filed claim

ease. of last eighteen months of date haz

within exposure, by the was not barred

ardous of limitations.

statute

AWARD SUSTAINED. Fund, Special Indemnity Black, Bass, 5. Levi Bryson v. 389 P.2d & Sivalls P.2d 3. 1964). 1973). (Okl. (Okl. Indemnity Hulse, Special seq. P.2d Fund 171 et as amended. O.S.1971 (Okl.1968). *2 Larry Derryberry, Atty. Gen. of Oklaho- ma, Crowe, Paul Gray, James H. R. Thomas Lay, Asst. Attys. Gen., City, Oklahoma for petitioners. Counselor, Powell,

Walter M. Municipal Williams, John M. Municipal Asst. Counsel- or, City, Oklahoma of Oklahoma City.

BARNES, Justice: Department The Oklahoma of Correc- tions was authorized House Bill No. 2006,1 Session, Thirty-fifth Second Oklaho- ma Legislature, acquire two or build more community treatment center facilities addition, within the State. the same of the Legislature session enacted House Bill No. 17372 appropriating certain monies to the Board of Public Affairs and pertinent portions 1. The of House Bill No. 2006 House Bill No. appropriating 2. certain provide as follows: Affairs, monies to the State Board of Public Appropriation provides in Section “SECTION 1. 11: hereby appropriated Depart- “There acquisition “SECTION Land Corrections, ment monies in the Affairs, subject “The State Board of Public Treasury, Revenue Fund of General the State approval Corrections, of the State Board of year 30, 1975, ending for the fiscal June acquire Department shall for the of Corrections appropriated, amount, following otherwise necessary lands for the facilities authorized may required or so much thereof purposes specified: for the 2006, Thirty-fifth in House Bill No. Oklahoma Legislature, Regular Second Session.” OF “DEPARTMENT CORRECTIONS “Purchase or construction of two or more com- munity 600,000.00 treatment center facilities York, the State New partment of necessary

authorizing the acquisition known premises within purchasing to construct land facilities authorized youth 50 Browncroft for a Boulevard leg- Bill No. Pursuant House house, under supervision, adult center to authority, Department of Cor- islative needed youths, to seven who three some began site selection an extensive rections pur- help or rehabilitative for corrective *3 process. was in an R-l property situated poses. 17,1976, of the State Board December On city zoning district under the residential with Affairs into a contract Public entered use was proposed in which the ordinance (seller) Corporation Inn Operating Suntide made, not The State had permitted. not Board of Corrections acquisition for the make, application to any to did intend nor it property, the Motel located of Suntide Inn of city zoning approval authorities for the Expressway and Northwest 39th at Street said Court therein: use. The the City, as the site 240 in Interstate Oklahoma that the complaint is of the “The crux of one the facilities. building the contemplated use violates Thereafter, City City of Oklahoma the city and of the zoning ordinances agencies the its State and informed the proper zoning approval that without the the attempt proper- State to use should by the state property of the acquisition community with- facility, a treatment as contemplated illegal and use is the for submitting proposed the site to the out creating the for Youth Division In void. City Planning for Commission Oklahoma that, one of its directed as legislature O.S.1971, 1420, pursuant to approval § established, functions, youth centers be City would proceedings to en- institute pre- to and maintained in order operated such use. join this reason Board For youth crime. delinquency youth vent (Peti- Board Affairs Corrections Law, 501). appears It (Executive § tioners), agencies State, brought as being carry to property acquired is this original through proceeding by Zoning purpose. such The Rochester out Larry Derryberry, Attorney General of effect of would have the Ordinance Oklahoma, to asking expressed this Court assume ‘thwarting policy’ the state’s as jurisdiction original pursuant to Law for providing Article Executive in the VII, 4, Constitution, prevent delinquency and Oklahoma and seek- youth centers it and hin- judicial and ‘insofar as conflicts ing legal a determination of the crime policy overriding Law and presented. ders an State question * * * * * (cases (it) is void *.’ public importance view of the In of this cited). for is entitled The Division Youth decision, early need for an matter exemption zoning ordi- jurisdic- decided original we to assume City oper- of the of Rochester nances tion. Morrison Industrial De- v. Ardmore required a and is youth center not ate velopment Corp., (Okl.1968); P.2d 816 con- zoning approval or other obtain Application County Building Courthouse sents.” Commission, 403 (Okl.1965). P.2d 501 supra, it Rutgers, was held Rut-K. general govern rule a As State instrumentality of University was an gers body subject zoning mental to local and, such, from local the State immune regulations or Rutgers, restrictions. State zoning for in its choice of site ordinances University v. Piluso, 60 N.J. 286 A.2d housing students. The Court facilities for (1971); Department of Audit Nowack Rutgers, supra: stated in therein Control,% 72 Misc.2d 388 N.Y.S.2d university regard “With (1973). matter of for moment the (passing can Nowack, Rutgers), there supra, peculiar an action for status involved that, instrumentality judgment relief, as an declaratory injunctive little doubt gov- performing an essential plaintiffs of the state sought an order restrain- all Youth, function the benefit ing the Division Executive De- ernmental permitted state, negate Legislature Commission of the people growth planned intend that its location would center. development subject restric- should Here, ques Oklahoma does not regula- local land tion or control use general rule of immunity, tion but Indeed, tion. such will be true generally that 11 1420 specifi contends case of all state functions and cally requires pro the State to submit its agencies.” within their posed site limits to the Highway New Jersey See also Bloomfield v. City’s Planning approval Commission for its Authority, (1955), N.J. A.2d 658 rejection. do not agree. We Such an Jersey Supreme in which New plainly expressed is not intention or clearly that an instrumentality concluded implied reading 1420, supra. See State, the Highway Authority, County Harmon, Davidson 200 Tenn. be immune zoning should local ordi- (1956), S.W.2d 777 where Tennessee nances if following criteria are met: *4 Supreme Court stated: project 1. The is project a for a State sovereign (State Tennessee) “The of is use; public by a bound not statute it unless be ex- public purpose

2. The is essential an pressly in stated the statute that the sov- function; governmental ereign is to be bound. . . . This rule public recognized state, 3. The need for such a project is is as far back in this as urgent; Adm’r., State Crutcher’s 32 Tenn. page 509, at quot- where the there public goal 4. The completely could be ed Mr. this Story Justice effect: by thwarted the of local intervention “ communities; government ‘Where the is not ex- pressly, implication, or by necessary in- history or 5. The statute is devoid of cluded, clear, ought it to be from the legislative indication of intent or redressed, nature of the mischief to be or purpose important such an State language used, government the the facility wide should be so restricted. in contemplation legisla- was the itself of instant the case the final rehabilitation ture, before a court of law would be at prisoners community of a cen- treatment interpretation put upon authorized to prior society public ter release to is a ” the statute.’ and is governmental concern an essential quote The Tennessee Court went on to necessary function for the welfare of the Pennsylvania case, Tatham, a Jones v. people. its We think it obvious State is part in as follows: Pa. legislative goal provided the in “ No. 1737 House Bill and House general legisla- Bill No. 2006 ‘The business the of thwarted Planning power be is to City would if the establish laws for tive individ- O.S.1971, 1420, provides: governmental enterprise, 3. 11 other be or one the not, financing authorization or of which does adopt- the commission “Whenever shall have provisions governing the charter under same, law or plan municipality ed the master of the or of one province municipal the fall within the major thereof, or or more street, sections districts no council, planning the submission to the com- square, park, public way, or other board, by commission, shall be the mission or ground, open space, public building- or or or body jurisdiction, having planning structure, the government such enterprise, or other shall disapproval may by be overruled municipali- commission’s constructed or authorized the board, commission, by planned body a said or vote of in such or section and until district ( n ) location, membership. less than not And agency appointive proval except by two-thirds of its character and extent thereof shall further, provided sponsoring approved by been submitted that if the elected, Provided; disap- disap- and not commission: That in case of proval the the commission cannot commission shall overridden communicate its council, power of not a vote reasons to overrule of not shall less than have the two-thirds ( n ) City such disapproval by The Council. recorded vote of sion failure commis- (¾ n ) sixty (60) days less than two-thirds entire to act the of its within from and membership: Provided, however, if That after date of official submission the com- way, ground, public structure, space, building, approval.” shall be mission deemed DOOLIN, JJ., concur spe- and, DAVISON sovereign; when uals, for cially. are to be rights the commonwealth affected, or the intention transferred HODGES, LAVENDER, J., J., V. C. C. necessarily or plainly expressed must be ” SIMMS, JJ., BERRY dissent. implied.’ 1420, supra, does not language of § DOOLIN, concurring. Justice, specially “state”, public building, refer to specifically agree I such as with the a task majority, structure, governmental or enter- other prisoners, is regarding rehabilitation of language providing prise; neither does governmental import function Planning overriding Commission’s concern public preclude to interference specifically impliedly refer to disapproval City by Planning Commission. the “state”. However, I subscribe view cannot Furthermore, 1420, supra, even if adoption in its majority embraced implication byor to restrict expressly found Harmon, holding County v. Davidson sovereign to mu- by subjecting State it (1956) 200 Tenn. 292 S.W.2d control, nicipal Petitioners would still is not bound its Tennessee Bill be bound this case because House provided other- expressly statutes unless and House Bill No. 2006 were No. correctly I the dissent wise. believe subsequent Plan- passed a more view of con- ning enlightened flects Acts 1411-1436. §§ immunity. To cept sovereign hold a point time, last in Act Being the latter *5 zoning subject is never to local restric- repeals the the in- former to extent of its state perpetuum, to consistency, being the is emasculate in the expres- the same last tions power granted sion Ramsey Leep- very of intent. v. the has munici- legislative state er, 43, v. (1933); palities, regulate orderly 168 31 P.2d 852 Brown zone its Okl. Marker, (Okl.1965). growth. 410 P.2d 61 Moreover, the specific, these are bills majority the authorities cited The two prevails specific legislation

rule is that over dissent, University v. Rutgers and the State of Bei general legislation in case conflict. Piluso, 142, (1971); 60 A.2d 697 N.J. 286 Belford, (Okl.1974); P.2d 649 dleman Jersey Highway Author- Bloomfield v. New Stith, Parks v. Okl. 232 P.2d (1955) N.J. A.2d 658 set ity, 18 (1951). 11 of House Bill No. 1737 Section for the certain criteria or standards forth specifically directed the State Board of Af of balancing governmental interests fairs, approval subject to the of the State body seeking immunity against the welfare Corrections, acquire the Board of major- the the municipality. Apparently of necessary Board of State Corrections interests” and finds has “balanced the ity in House lands for facilities authorized par- are and immunities state’s interests Bill there No. 2006. It is to noted that particular circumstances. amount these no mention subjecting choice to the plan- A land-use agree. city’s I control the City Planning Commission. approval effectuating ning give way must goal. issue such legislative In an affective reasons, as- For the aforesaid this Court center, the location of pre-release original jurisdiction this matter sumes lead to a O.S.1971, hold otherwise substitution could and concludes that 11 does § city’s emotionally tainted collective not require State of Oklahoma to sub- wisdom of the for that of the community selection judgment its of a site for mit Legislature. approval center for of the Okla- treatment City Planning Commission. homa

ORIGINAL JURISDICTION ASSUMED. that Justice I am authorized to state herein ex- in the views

DAVISON concurs IRWIN, pressed. JJ., concur. WILLIAMS municipal regulations, land use Justice,

SIMMS, dissenting: extent, is properly to what not one sus- respectfully I dissent. of absolute or ceptible ritualistic answer. majority’s applicabili- analysis of The have, however, frequently Courts 1420 to the Board in perhaps conflicts too sim- solved that upon premise is based Corrections and by terms the use of labels plistic zoning municipal is immune from through adjudica- than reasoned rather starting point It regulations. is from question gov- of the critical which tion conclusion majority reaches its prevail interest should ernmental is 1420 because subject Board particular relationship or factual situa- mentioned, specifically state” is “the tion.” immunity is there- presumption of following The Court then advanced not overcome. fore of interests test as a means to balance validity issue with the I take scope of immu- the existence and determine unqualified im- that the state has premise nity. Further, regulations. I zoning munity our through “The rationale runs require the Board believe does cases and which we are convinced should Planning its site to the proposed submit immunity in the furnish the true test of Commission. instance, nebulous first albeit a somewhat to which the use of land The extent one, legislative regard intent in this is the governmental subject to superior unit is respect to with particular agency zoning regulations government the host intent, function rarely That involved. us for the time. The tradi- first is before expressed, to be divined is specifically immunity, which the ma- concept of tional factors, many from a consideration of this con- adopts as the resolution jority judgment reached on an value with a jurisdic- flict, being by other is discarded possible evaluation. All factors overall simplistic being replaced as too tions abstractly catalogued. cannot by a “balancing Rutgers, test. interests” obvious include most and common ones Piluso, University 60 N.J. scope nature and of the instrumental- (1972); Long Branch Div. of *6 A.2d Unit- seeking immunity, kind of func- ity Cowan, Tax 119 Org. & v. N.J.Su- ed Civic involved, use the extent of or land tion (1972); 306, A.2d 381 Town of 291 per. thereby, interest to be served public Rochester, 468, City of 293 Minn. v. Oronoco regulation local land use would the effect (1972); City N.W.2d 426 v. 197 Newark upon the concerned and enterprise Delaware, Ch., University of Del. 304 A.2d upon impact legitimate local inter- (1973); 347 Hillsborough Ass’n for Retard- ... In some one ests. instances Citizens, Terrace, Inc., ed City Temple v. will be than an- factor more influential Fla., (1976). comprehen- A So.2d 610 may significant or be as to com- other so Note, sive discussion in is found “Govern- one, pletely all others. No overshadow Immunity Zoning from Local mental Ordi- withholding of granting such as the or nances,” 84 (1971). Harv.L.Rev. 869 domain, power of is to be eminent statements, Contrary majority’s ritualistically required or thought of as Piluso, Rutgers, University supra, v. controlling. undoubtedly there will And support adoption does their of the state cases, past, as there have been in the be immunity leading is the concept. Rutgers public where the broader interest is so rejecting finding case im- an automatic important immunity grant- that must be munity and real- adopting instead the more though may ed even interests be the local balancing approach. interest istic point The great. pre- is that there is no The Court observed that: or formula set of criteria which will cise every mechanically question case governmental “The determine of what automatically.” units instrumentalities are immune empowered specifically has cities to balancing this test that enact under It was of, zoning regulations. and enforce history determined that the O.S. seq., City et v. statutory regarding Rutgers did Oklahoma Bar- enactments Okl., (1961). clay, Municipal legislative intent confer immuni- P.2d to show to zoning pursuant ordinances enacted townships zoning from the restrictions. authority have the force of statutory legis- held, however, im- that such The Court Bishop, enactments. Weaver lative absolute, stating that: munity was not (1935). zoning 52 P.2d 853 This Okl. is, however, to stress important most “It sovereign power, is also in power situation is immunity any thereof, cities are “equally exercise their it Even where completely unbridled. Note, state.” Harv.L.Rev. agents * * * not, exist, it must found See, Pittsburgh Com- be exercised in an unreasonable fashion monwealth, Pa., (1976). A.2d The arbitrarily important all so override has municipalities enabled Legislature legitimate rule must local interests. This plan for, enforce, comprehensively their instrumentali- apply state and its zoning policies through city planning com- as to as well governmental ties lesser O.S.1971, 1411, missions. 11 seq. et immunity. For exam- entities entitled passage City Planning The Com- arbitrary, if the ple, it would Legislature’s Act shows mission aware- building proposed to erect office importance intelligent land- ness where business district of crowded planning. land is a Available finite use for off-street provision parking potential and the demands which resource some quired, for state not to make placed upon it are may infinite. respect. provision reasonable Through City Planning the creation of And, very least, pro- if the at even Commissions, Legislature gave munici- governmental action of the posed immune they may a means at- palities instrumentality does the unrea- not reach tempt growth to control future and direct reason, stage sufficient sonable land-use in a manner best suited to with instrumentality to consult ought morals, “health, order, safety, promote sympathetically local authorities and prosperity” convenience their give every listen and consideration [and] citizens, present through future objections, suggestions problems and local “healthful to minimize as much convenient distribution of the conflict order good . . population design civic possible.” arrangement, and and efficient wise ex- pro- Rutgers’ found Court then public funds.” 11 penditure housing, of the land for student posed use township au- presented which had been was not by a application, thorities variance legislative I believe intent of *7 unreasonable. clearly state subject and its zoning regulations to municipal subdivisions no at-

Obviously, majority makes street, procedures. square, park, and implement the tempt “[N]o criteria set forth public open way, ground, space, other or or Rutgers, supra. The here is auto- Board structure, building or or other matically public by virtue of or declared immune enterprise, shall be constructed superior government position governmen- state’s in the location, . until the . . hierarchy, no will be authorized opportunity tal and shall extent thereof have for determination of whether character afforded by approved submitted to and unreasonably has acted and arbitrari- been Board ly selection. in its site commission.” important find nothing appropriation

I it is understand I can believe bills, H.B. 1737 simply this conflict is not which show an between exempt municipal a state to exer- intent Board agency attempting zoning regulations sovereign power. nor a mandate for Legislature cise site There no specific provi- selection. are in the Bills which are sions inconsistent COMPANY, INC., LEGER MILL statutory

§with therefore the rules of Supply, Sheffield Smith Elevator majority by construction cited have no Inc., Appellees, application. adoption of balancing advocate I INC., KLEEN-LEEN, First test would do so even in interest Altus, Oklahoma, Bank of 1420. I absence believe it offers the Appellants. only reasonable solution to controversy to similar controversies which are No. 46046. to arise. bound Supreme Court of Oklahoma. were, count,1 There at last official April boards, agencies and commissions. It is unrealistic assume that all “state” upon municipal

demands land which these

agencies could potentially make, would be equally important public purposes or their site selections would always be

reasonable. intergovernmental

Each conflict over present will questions

land-use novel

garding govern- relative interests of the units involved,

mental the reasonableness of location, site availability alterna-

tive locations consequences and the adverse

which will by be suffered local interests and

must be resolved by on a case case basis. respectfully

I suggest the Board required proposed

should to submit its Planning

site Commission for as set

approval, Appeal forth then

may be had to the City Council 1420)

(§ and from there to the District (§ 1434). This statutory scheme in- process

sures due providing law parties opportunity

all heard meaningful stage

at a the proceedings.

amI authorized to state that Chief Jus- HODGES,

tice Vice Chief Justice LAVEN-

DER, and Justice BERRY concur expressed

views in this Dissent. *8 Government, Boards, Prepared by Compendium, Agencies the Okla- 1. A and Com- homa Legislative Council, in the Executive homa missions Branch of Okla-