Vinson v. MedleyVinson v. Medley
Two questions are presented for review: [1] Does the Oklahoma City Board of Adjustment have the power to grant a variance for an oil-and-gas well to be drilled outside the U-7 zone? [2] If this be answered in the affirmative, did the applicant meet the prerequisites for a variance? We answer both questions in the affirmative.
Ratliff Exploration Company [Ratliff], 1 intervenor-appellant, filed an application with Merrell H. Medley, Director of the Community Development Department [Director], appellant, to drill an oil-and-gas well within the corporate limits of Oklahoma City [City] upon a tract that is located in the “1-2 Moderate Industrial District” and lies within an area compulsorily pooled by a Corporation Commission order. The permit was denied because it would have violated certain Oklahoma City Code ordinances that prohibit the drilling of wells outside a U-7 drilling zone. Ratliff sought relief from the Oklahoma City Board of Adjustment [Board]. The Board granted Ratliff the requested variance and ordered the Director to issue the permit. 2
Bridget Vinson [homeowner] appealed to the district court from the Board’s order and challenged the Board’s authority to grant a variance for drilling an oil-and-gas well. The trial court allowed Ratliff to intervene in order to protect its interests. At trial it was established that the proposed well site was situated adjacent to the Hardy Acres housing addition where the homeowner resided. Both the Hardy Acres development and the drill site were located within an 1-2 Moderate Industrial District where many industrial uses are currently found. The well site is approximately 300 feet south of the housing development and
I
THE POWER OF THE BOARD TO GRANT VARIANCES FOR OIL-AND-GAS WELLS TO BE DRILLED OUTSIDE THE U-7 ZONE
The homeowner contends that Article XII of the Oklahoma City Charter
4
and
This court has addressed itself to the issue of conflicts between municipal ordinances or charter provisions and state law.
9
A city charter draws its legal vitality from Art. 18, § 3(a), Okl. Const.
10
and from the implementing provisions of
Oklahoma jurisprudence recognizes the
legislative
authority of a city to enact zoning ordinances
15
and the
adjudicative
power of its board of adjustment to grant variances from city ordinances.
16
A city is empowered to enact zoning laws to regulate the drilling of oil-and-gas wells with a view to safeguarding public welfare.
17
Without these regulations residents would be exposed to multiple dangers and unnecessary inconveniences.
18
A city that exercises zoning powers is statutorily mandated to establish a board of adjustment
19
whose function is to deter
The City Charter, Art. XII, requires a vote of the electors to enlarge or to create U-7 drilling zones.
24
It limits the city’s legislative powers but does not address itself to the adjudicative powers of the Board to grant variances in the manner provided by
THE CRITERIA NECESSARY TO GRANT A VARIANCE
A. The Presumption of Validity of the Board’s Decision
Ratliff argues that it is entitled to the presumption of validity that attaches in favor of the Board’s decisions. 30 We agree that in variance cases a presumption does exist in favor of the correctness of the Board’s rulings. A granted variance will be accorded great weight and will not be disturbed when it has been affirmed on appeal by a district court unless it is clearly arbitrary or erroneous. Because in this case the Board’s decision was reversed, the presumption that initially attached to its validity is to be regarded as having been overcome by the adverse ruling of the trial court.
B. Burden of Proof
Ratliff contends that on appeal to the district court the petitioner (homeowner) has the burden of proof to show that the elements of a variance were not met.
A proceeding to review a board’s decision either to grant or to deny a variance is equitable in nature. 31 Unless clearly contrary to the weight of the evidence, the district court’s decree will not be disturbed. 32 The trial court must conduct a de novo inquiry 33 and it has the same power as the Board to grant or to deny a varianee. 34 There must be a complete examination of all issues, both of fact and law. The cause stands as if it has never been resolved before. Thus the burden of proof does not shift but rests on the same party as in the lower tribunal. 35 Since Ratliff had the burden to prove before the Board that the elements necessary for a variance had been met, it also bore the same responsibility in the district court.
C.Elements Necessary for a Variance
The Board may grant a variance to a landowner if the landowner can show that: [1] a variance would not be contrary to public interest; [2] an unnecessary hardship would arise if the ordinance were literally enforced; [3] the spirit of the ordinance would be upheld; and [4] substantial justice would be done by granting the variance. 36 A variance is contrary to the public interest if, in the opinion of a reasonable man, it conflicts with public interest. 37 An unnecessary hardship is found when: [1] there is some degree of interference with an ordinary legal property right from which the hardship would arise; [2] the hardship is peculiar or unique to the applicant’s situation; [3] the degree of severity of the hardship imposed by the ordinance is not essential to carry out the spirit of the ordinance and [4] substantial deprivation results to the applicant. 38
Ratliff claims that it has met the requirements for a variance. First, it contends
Ratliff argues that there is a high probability of recoverable quantities of hydrocarbons under the property. 39 Refusal to grant a variance would deny the mineral owner the ability to enjoy any of his subsurface property rights — a substantial deprivation in the constitutional sense. According to Ratliff, all necessary precautions will be employed to minimize the well’s adverse impact. A separate service road will be used to divert drilling-related traffic from public residential streets.
The homeowner argues that Ratliff has failed to meet the necessary requirements for a variance. She asserts that Ratliff has imposed upon itself the financial hardship from which it seeks relief by acquiring a leasehold in the face of charter and leasehold restrictions. 40 She further argues that the well will produce excessive noise and dangers to the residents of Hardy Acres.
Reviewing the standards articulated in
The district court’s decree is reversed with directions to reinstate the Board’s order.
Notes
. After the homeowner had brought her appeal in the district court, Ratliff was acquired by TXO Production Company.
. The Board made the following findings: [1] the property was located in the 1-2 Moderate Industrial District, [2] the granting of a permit would not have any adverse effect upon the surrounding property owners, but to deny the permit would constitute an unwarranted hardship and an unreasonable deprivation of the use of Ratliff’s property, [3] there are conditions peculiar to the particular property involved; and [4] the granting of the variance would not be detrimental to the health, safety and general welfare of the inhabitants.
.The terms of Article XII of the Oklahoma City Charter provide in pertinent part:
"Section 1. Oil and Gas Drilling Zones — Approval by Electors. The City Council of Oklahoma City, Oklahoma, shall not pass any ordinance, motion or resolution creating any additional zone for drilling for oil or gas, nor shall said Council amend any existing ordinance, relating to the drilling of wells for the production of oil or gas within the said City whereby the U-7 or Oil Drilling Zone is enlarged or extended until the question has been submitted to the qualified electors of The City of Oklahoma City, and approved by them by a majority vote of those voting at said election; such question to be submitted to the said electors at a general or special election. (Charter, November 28, 1934.)
Section 2. Submission of Ordinance by Council. The City Council of The City of Oklahoma City may, on its own motion, submit to the qualified voters of the said City any ordinance or resolution having for its purpose the creation of an additional Oil and Gas Drilling Zone, or extension of present Oil and Gas Drilling Zone, defined by the ordinances now in force relating to drilling for oil or gas, within said City, the costs of said election to be paid out of moneys appropriated by the said City for special elections. (Charter, November 28, 1934.)
Section 3. Petition for Additional Zones — Deposit for Election Expense. Whenever any person, firm or corporation shall file with the City Clerk of said City a petition or request in writing for the creation of an additional Oil or Gas Drilling Zone or for the extension of the U-7 Drilling Zone as now defined by ordinance, the Mayor of said City shall submit said petition or request to the qualified electors of the said City at the next general election held in said City for the election of City officers, or at a special election at which the said petition or request shall be submitted to the voters for their approval or rejection. * * *” [Emphasis supplied.]
. See footnote 3 supra for the pertinent provisions of Article XII.
. The
currently effective
version of
The terms of the
then-effective text
of
“The board of adjustment shall have the following powers:
1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of any zoning ordinances;
2. To hear and decide special exceptions to the terms of the ordinance upon which the board of adjustment is required to pass under such ordinance;
3. To authorize in specific cases such variances from the terms of the ordinance as will not be contrary to the public interest, where 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; and
4. Exceptions and/or variances may be allowed by the board of adjustment only after notice and hearing as provided in Section 44-108 of this title.”
. The terms of
. In support of her argument the homeowner cites to
Lackey v. State,
. Ratliff s and the Director's argument relies on
Pelican Production Corp. v. Mize,
Okl.,
.
State ex rel. Burns v. Linn,
. The terms of Art. 18 § 3(a), Okl. Const., provide in pertinent part:
"Any city containing a population of more than two thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State,.... Upon such approval it shall become the organic law of such city and supersede any existing charter and all amendments thereof and all ordinances inconsistent with it. * * * ” [Emphasis supplied.]
. The provisions of
.
Lee v. Norick,
Okl,
.
Farmer v. City of Sapulpa,
Okl.,
. See
Moore v. City of Tulsa,
Okl.,
.
Garrett v. City of Oklahoma City,
Okl.,
The city has the authority to regulate the drilling of oil-and-gas wells within its corporate limits. City of Sand Springs v. Colliver, Okl.,434 P.2d 186 , 190 [1967]; Van Meter v. Westgate Oil Co.,168 Okl. 200 ,32 P.2d 719 , 720 [1934] and Oklahoma City v. Harris,191 Okl. 125 ,126 P.2d 988 [1941],
. A board of adjustment is empowered to grant variances in order to prevent unnecessary hardships.
Twist v. Kay,
Okl.,
.
Nucholls v. Board of Adjustment, supra
note 8 at 560 and
Clouser v. City of Norman,
Okl.,
.
Van Meter v. H.F. Wilcox Oil & Gas Co., supra
note 16,
. The terms of
“Where a municipality is exercising zoning powers, as conferred by Section 43-101 through 43-109 of this title, the governing body of the municipality shall provide by ordinance for the appointment of a Board of Adjustment. * * *"
. Twist v. Kay, supra note 16.
.
Oklahoma City v. Harris, supra
note 15,
. Nucholls v. Board of Adjustment of City of Tulsa, supra note 8 at 559.
A variance is an administrative authorization for the construction of a structure or, as in the present case, for the establishment of a use which is prohibited by a zoning enactment. It is, in essence, a form of relief that prevents the confiscation of property and is granted where the literal enforcement of a zoning ordinance would result in unnecessary hardship or practical difficulties to the property owner. See Clerics of St. Viator, Inc. v. D.C. Bd. of Zoning Adjust.,320 A.2d 291 , 294 [App.D.C.1974] and Charles S. Rhyne, The Law of Local Government Operations, § 26.53, p. 808 [1980].
. Nucholls v. Board of Adjustment of City of Tulsa, supra note 8 at 559 and City of Sand Springs v. Colliver, supra note 15 at 190-191.
. See footnote 3 supra for the pertinent terms of Article XII of the Oklahoma City Charter.
. See footnote 5
supra
for the text of
. The text of
"A variance from the terms of the ordinance may be granted, as provided in this article, only upon a finding by the board of adjustment that:
1. The application of the ordinance to the particular piece of property would create an unnecessary hardship;
2. Such conditions are peculiar to the particular piece of property involved; and
3. Relief, if granted, would not cause substantial detriment to the public good, or impair the purposes and intent of the ordinance or the comprehensive plan."
.
Oklahoma City v. Harris, supra
note 15,
. See the provisions of
. A city charter provision that
severely restricts
an owner’s opportunity to test the validity of a zoning ordinance against the
basic physical facts
in the
locus in quo
is constitutionally infirm. See
Pruneyard Shopping Center v. Robins,
. In support of its argument Ratliff cites to
Banks v. City of Bethany,
Okl.,
.
Banks v. City of Bethany, supra
note 30 at 180;
Melton v. City of Durant, supra
note 16;
Brown v. Fraser,
Okl.,
. See cases cited in footnote 31 supra.
. The terms of
"The appeal shall be heard and tried de novo in the district court. All issues in any proceedings under this section shall have preference over all other civil actions and proceedings."
.
Bailey v. Uhls,
Okl.,
. Shelton v. Lambert, supra note 34 at 470.
. Twist v. Kay, supra note 16 at 184; see Van Meter v. H.F. Wilcox Oil & Gas Co., supra note 16.
.
Van Meter v. H.F. Wilcox Oil & Gas Co., supra
note 16,
.
Van Meter v. H.F. Wilcox Oil & Gas Co., supra
note 16,
. The proposed well will be the first one drilled on the 40-acre pooled spacing unit established by the Corporation Commission. It is not an increased-density well.
. A financial hardship alone is not a basis for a variance.
Matter of Schrader,
Okl.,