*1 AFFIRMED.
WINCHESTER, C.J., LAVENDER, COLBERT, JJ., OPALA, WATT, TAYLOR, concur. HARGRAVE,
EDMONDSON, V.C.J., KAUGER, JJ., concur in result.
ald G. and Tim Plain Appellants, tiffs/ Sherry BISHOP, City Clerk;
Owasso, Oklahoma, municipal cor
poration, Defendants/Appellees, Development Company, Four Points LLC, Intervenor/Appellee. 102,284. Supreme Court of Oklahoma.
May8,2007.
KAUGER, J. presented
T1 The determinative issue is pre- to rezone whether the viously zoned is sufficient to hold be submitted the electorate.1 We that insufficient be- unconstitutionally cause it seeks to bind the City exercising legislative power its rezone.
STIPULATED FACTS2 July application T2 On appellee, filed with the of Owasso (City), change zoning of 66.4 acres of appel- real owned the intervenor lee, Company Development Four Points (landowner). application changing "single family residential" to "office medium intensity," Complex con- to build Medical sisting hospital, medical
offices, living and senior facilities.
[
published
public
3 After notices were
held,
hearings
Planning
were
Commis
legislative power
dispositive
Appellants
argued
also
that
specific parcel
cess could be utilized to
rezone
issues.
cause, we need not address
those
property,
appellees
contended
ordinance failed
lack
parties jointly
April
filed a
2. On
general applicability.
peti-
Because we find the
stipulation
leading
of the facts
to this lawsuit.
tion was insufficient due to the restriction of
unanimously
August
sion voted
on
5 On December
presented
thirty-two
Clerk with
approval
application
recommend
packets of
including sig-
Initiative Petitions
regarding
rezone-with
some conditions
required
natures
excess of the
25%
proposed development.
August
On
©.98.2001 15-103.4 After review and con-
unanimously
Council also
voted to
*3
City
sultation with the
Attorney,
Owasso
it
approve
rezoning application
pro
the
was determined that
petition
the initiative
posed development
Septem
revised.
as
On
placing
was
insufficient for
the
7, 2004,
City
adopted
ber
the
Council
Ordi
posed ordinance before the electorate be-
changed
nance No.
which
the
1) zoning
proper subject
3 cause:
is not a
of an
property
intensity."
the
to "office medium
2)
petition;
proposed
the
ordinance
(Pe-
8, 2004,
appellants
T4 On October
the
general application throughout
was not of
the
titioners),
petition
3)
filed an initiative
in the City;
attempts
the
ordinance
Clerk)
City
(City
office of the Owasso
Clerk
impermissibly
enjoin
City
from rezon-
seeking
City
a
ing
property
vote of the
electorate to re-
period
years;
for a
of ten
4)
"single family
prepare
zone the
residen-
the Petitioners
failed to
a
proper form
City
of ballot title.
Clerk
prohibit any subsequent
tial" and to
rezoning
published a notice of determination of insuffi-
a
years.
for
of ten
On
ciency in
Reporter
the Owasso
February
on
Planning
October
Commission
22, 2005.
Council,
City
and on October
respectively, approved
plat
the final
and site
1 6
day,
That same
filed a
plan
for the Medical Com-
petition for a writ of
in
mandamus
the Dis
plex. The Plat of the Owasso Medical Cam-
trict
County.
Court of Tulsa
The writ
pus,
Owasso,
subdivision within the
sought
to order the
Clerk to fulfill the
0.S$.2001
duties
15-1045
was recorded on March
time,
(60)
sixty
days
3. At the same
Ordinance No. 795 was also
before the election at which the
adopted
supplementally
proper-
zoned the
upon.
amendments are to be voted
ty
Development
for the Planned Unit
No. 04-03.
provides:
5. Title 11
15-104
0.$.2001 §
4. Title 11
15-103
signed copies
petition
timely
A. When
of a
are
petition
A. The form of the
for either initiative
clerk,
filed with the
the clerk shall make a
municipality
or referendum in a
shall be sub-
physical
signatures
count of the number of
stantially
provided
in Sections 1 and
appearing
petitions.
pub-
on the
He shall then
copy
Title 34 of the Oklahoma Statutes. A true
lish,
(1)
general
newspaper
in at least one
proposed by
of each measure
initiative and
circulation
in the
a notice of the
municipality,
referendum
filed
shall be
with the clerk of the
filing
apparent sufficiency
or insuffi-
municipality
signed
before it is circulated and
ciency
petition.
The notice shall also
registered
voters.
any qualified
state that
elector of the munici-
Every petition
B.
for either the initiative or
pality may
protest
petition
file
to the
or an
signed by
referendum shall be
a number of the
objection
to the count made
the clerk.
registered
residing
municipality
voters
in the
protest
petition
B. A
to the
count
(25%)
to at least
equal
twenty-five
percent
signatures shall be filed in the
court
district
preceding
the total number of votes cast at the
county
municipali-
in which the situs of the
meeting
election or biennial
town
if
(10)
ty
days
is located within ten
after the
municipality
to the Oklahoma
publication.
protest
Written notice of the
shall
Meeting
signatures
peti-
Town
Act. The
to each
upon
parties
be served
the clerk and the
who
provided
tion shall be verified in the manner
petition.
filing
filed the
In the case of the
by law.
objection
count,
notice shall also be
Signed copies
petition
C.
of an initiative
shall
upon any party filing
protest.
served
(90)
ninety
be submitted to the clerk within
days
filing
district
court
shall
fix a
than ten
less
after the initial
of the measure with
day,
(10) days
filing
protest,
after the
to hear
Signed copies
petition invoking
the clerk.
testimony
arguments
against
for and
upon any
a referendum
ordinance or resolu-
sufficiency
petition.
protest
A
filed
tion shall be submitted to the clerk within
it,
(30)
anyone,
party filing may
thirty
if
days
abandoned
after the
of the ordi-
(5)
days by
nance or
be revived within five
other
resolution. Amendments to munici-
pal
proposed by
qualified
hearing,
charters
elector. After the
an initiative
dis-
petition,
signed copies
petition
of such
trict court shall decide whether such
required by
shall be submitted to the clerk not less than
in form
law.
1) zoning
proper subject
certifying
that:
is not a
verifying
signatures,
such as
2)
if
legal
challenge by
petition;
even
it
validity,
publishing
notice
their
the newspaper.6
were,
ordinance was not of
On March
3)
impermissibly
motion to intervene and the
it
general application;
landowner filed a
permitted
enjoin
the intervention
on
attempted
trial court
Council
subject property
March
2005. The
Clerk answered
petition, contending that she had fulfilled
years.
August
retained the cause on
We
duties,
5, 2005;7
but
briefing cycle
completed
her
had been determined to be
March
and the cause was as
on
City Attorney.
signed
insufficient
December
on
April
T7 On
the Petition
THE
LEGALLY INSUF-
PETITION IS
summary judgment.
ers filed a motion for
*4
FICIENT BECAUSE IT SEEKS TO
signa
parties agreed
The
that the number of
BIND THE
UNCONSTITUTIONALLY
filing
of
met
the
tures and dates
CITY FROM EXERCISING ITS LEG-
petition, but
requirements
of an initiative
TO REZONE.
ISLATIVE POWER
process
the initiative
could
disputed whether
Constitution,
parcel
art.
specific
be utilized to rezone a
T9 The Oklahoma
5, §§
29
petition
and
the initiative
18 and
endows the citizens of Okla
whether
hearing
right
otherwise
sufficient. A
homa with the
of initiative and referen
purpose
process
dum.10 The
of the initiative
13, 2005,
court,
May
the trial
was held on
and
people
propose
in an order filed June
determined
is to allow the
to
bills and
sought
statutory penalty
6. The
also
a
Petitioners
§
Constitution,
5,
8. The Oklahoma
art.
pro-
0.$.2001
§
$500.00
of
1462. Ti-
vides:
tle 12
Legislative authority
of the State shall be
peremptory
Whenever a
mandamus is directed
Legislature, consisting
vested in a
of Senate
officer,
board,
body
any public
to
or
command-
Representatives;
peo-
and a
of
but the
House
ing
performance
any public duty special-
the
of
ple
power
propose
reserve to themselves the
to
law,
ly enjoined by
appear
if it
to the court that
and
to
and
laws
amendments
the Constitution
officer,
such
or
member
of such
or
any
body
reject
polls
to enact or
the same at the
inde-
excuse,
board, has,
just
without
refused or
pendent
Legislature,
the
also reserve
neglected
perform
duty
enjoined,
to
the
so
the
fine,
power
option
approve
reject
may impose
exceeding
at their own
or
five
court
dollars, upon every
polls any
Legislature.
hundred
such officer or
at the
act of the
fine,
body
members
such
or board. Such
5,
collected,
when
shall be
into the
9. The Oklahoma
treasury
paid
duty ought
county
of the
where the
to have
vides:
performed;
payment
is a
been
thereof
power
by
people
The first
reserved
the
is the
any penalty
by
bar to an action for
incurred
initiative,
eight per
legal
centum of the
board,
such officer or member of such
or
body
right
propose any legis-
voters shall have the
neglect
perform
reason of his refusal or
measure,
per
duty
enjoined.
lative
and fifteen
centum of the
so
legal
right
propose
voters shall have the
On June
dismissed
damages
penalty.
by petition,
claim for
amendments
Constitution
every
shall
the full
include
We
cannot undervalue the Oklahoma Constitu
proposed.
so
text of
measure
The second
initiative,
right
may
ignore
we
our
tional
nor
referendum,
power
may
and it
be or-
duty
constitutional
to ensure that in the exercise
(except
necessary
dered
as to laws
for the
initiative,
right
provisions
of the
of the
preservation
public peace,
of the
immediate
pro
Constitution are adhered to. The initiative
health,
safety),
by petition signed by
either
only
abridged
cess should
when either the
legal
per
five
centum of
voters or
procedural aspects
process
have not been
Legislature as other bills are enacted. The
followed or it is clear that the measure enacted
per
legal
centum
voters hereinbe-
ratio
would
fundamental
law.
In re Ini
violate some
upon the
num-
fore stated shall be based
total
Question
662,
tiative Petition
No.
360,
No.
election for
ber of votes cast at
last
¶
stitution of the State and the Constitution CONCLUSION of the United States. rights 115 The of the initiative Granger, supra, applicable is The rationale of precious, and referendum are and this subject If an initiative to these facts. preserve Court is zealous to them statutes, as other and a same limitations spirit fullest measure of the and the letter repealed by a statute be amended or concerning of the law.21 All doubt the con will, legislative body at then an initiative pertinent struction constitutional petition may preclude the Owasso statutory provisions is resolved favor of Council from the initiative.22 The initiative should years.18 year prohibi- of ten The ten avoided, crippled, not be or denied tech city forbidding rezoning tion on council nical construction the courts.23 However on this tract renders the unconstitu- absolute; right it initiative is not tional. to constitutional and lim
{14 year attempt irrevocably Nor do we find the ten its. Here the bind prohibition Offending provisions municipal legislative body severable. making they of an initiative are not severable if are amendments the measure for petition.19 expressed fundamental to the years proposal renders unconstituti onal.24 purpose particular *6 provisions transcript hearing
17. Some states have constitutional
20. The trial
held on
prohibit
legislature
May
p.
provides
pertinent part:
at
31
passed by
process
measure
6«
. the
ordinance in the initiative
require repeal only
of time or
to be made
freezing
calls for moratorium or
of
example,
another
initiative. For
under
zoning
years.
for 10
That's
2(3)
Nevada Constitution,
19,
art.
amendment
unusual,
particularly
piece
to freeze a
of
prohibited
of an initiative is
within the first three
and not zone it for a
time.
years
passage.
of its
Growth Initia-
Sustainable
years
long.
The Court
think that 10
is too
tive Committee v.
LLC.,
53,
122 Nev.
128
Jumpers,
range
We've discussed it. We think that the
452,
(2006).
states,
P.3d
465
Other
such as
anywhere
years...."
could be
from five to ten
Washington,
provisions
have had
which forbid
years
or amendment
for two
Arizona
382,
Question
21.
In re Initiative Petition No.
State
which has held that an initiated measure could
729,
7,
No.
see note
In re Initiative Peti
supra;
only
repealed
or amended in the
man-
same
349,
Question
642,
tion No.
State
No.
1992 OK
adopted.
general-
ner
that in
which it was
See
122, ¶ 35,
1,
denied,
1071,
838 P.2d
cert.
506 U.S.
Legislative
J.E.
"Power
Annotation,
ly,
Macy,
1028,
(1993);
S.Ct.
122
LEd.2d 173
Oliver
Amend,
Body
Repeal, Abrogate
Initiative or
Tulsa,
11,
¶
121,
v.
1982 OK
TRIAL COURT AFFIRMED.
WINCHESTER, C.J., EDMONDSON, HARGRAVE, OPALA, KAUGER, V.C.J., WATT, JJ., concur.
LAVENDER, J., concurs result.
COLBERT, J., disqualified. TAYLOR, J., concurring specially: additionally
I would affirm the trial court's legislation by order that the to initiate applicable is not zoning property. petition process would be in conflict compliance protection with the full rights private and due process laws property owners.
Sue Connie Individu als, Defendants. 103,371. Oklahoma, Appeals
Court of Civil No. 4. Division Oct. Certiorari Denied Feb. In re Initiative Petition No. supra; Question