Garrett v. Watson , 1959 Okla. LEXIS 328 ( 1959 )

WELCH, Justice.

This is an appeal by El-'zabeth R. Garrett and Tom W. Garrett, Jr., hereinafter called plaintiffs, from an order of the Board of County Commissioners made under the provisions of 19 O.S.1957, Supp. § 863.1 et seq., re-zoning certain privately owned property in Oklahoma County from R-l Single Family Residential to C-2 General Commercial. Dr. O. Alton Watson filed his application with said Board for the re-zoning of the following described property:

“A part of the SW14 of Section 29, Township 13 North, Range 3 West, beginning at the Southeast Corner of the said quarter section, thence North 1,081.58 feet; thence West 667.19 feet; thence South to the Section line; thence East to the point of beginning.”

The plaintiffs are the owners of Lot 7, Mason Addition to Oklahoma City, Oklahoma. Plaintiffs, with others representing twenty per cent of the property across Britton Road and directly opposite to the fronting of the Watson property, filed their protest and plaintiffs appeared at the hearing conducted prior to the re-zoning. On August 19, 1957, the protest was overruled and the application of Watson to change the classification or zoning of his property to C-2 General Commercial purposes was granted.

On September 9, 1957, the petition of plaintiffs was filed in the district court on appeal. On the same date a written notice was given to the Board of County Commissioners of the intention to appeal. On the 15th day of November, 1957, the trial court dismissed the appeal and the order contains the following language:

“The Court having examined the files and having heard arguments of counsel finds that the demurrers pending herein should be treated as motions to dismiss and that the same should be sustained, and that the appeal should be dismissed on the ground that it was not filed within the time required by statute.

“It Is Therefore Ordered, Adjudged and Decreed by the Trial Court, that the petition and appeal of the plaintiffs filed herein, should be, and is hereby dismissed by the Court, with exceptions to the plaintiffs.”

The appeal from that dismissal to this court is upon the original record as provided by 12 O.S.1957 Supp. § 956.1 et seq., and the petition in error was filed in this court within 90 days, as provided by 12 O.S.1957 Supp. § 956.2. A motion to dismiss the appeal to this court has been heretofore considered and denied. The motion to-dismiss stated that it is not shown in the record that a notice to appeal upon the original record was given. Defendants state the record shows plaintiffs took time in which to make and serve a case? made. Since the court clerk acknowledged due notice of an appeal on the original record, both in his certificate and by his endorsement on the original record, and since the petition in error was filed within 90 days as provided by section 9S6.2. supra, the appeal cannot be affected by any order made respecting the completion of the record. We adhere to our former order made denying the motion to dismiss in this respect.

We think the-district court was in error in holding the appeal from the Board of County Commissioners was not filed within time. 19 O.S.1951 § 431, provides for appeals from the action of the Board of County Commissioners. 19 O.S.1951 , § 432 is as follows

“Said appeal shall be taken within twenty days after the decision of said board, by serving a written notice on one of the board of county commis-sipners, and the-clerk shall, upon the filing of the bond as hereinbefore provided, make out a complete transcript, of the proceedings of said board relating to the matter of their decision thereon, and shall deliver the same to the clerk of the district court.”

The 8th day of September, 1957, fell on Sunday. Plaintiffs therefore had until the 9th day of September to file the appeal. 12 O.S.1951 § 73; Grant v. Creed, 35 Okl. 190, 128 P. 511; O. K. Construction Co. v. Burwell, 185 Okl. 444, 93 P.2d 1092. The defendants in error have, in effect, abandoned the reason assigned by the trial court for the dismissal, but urge two other reasons which will be considered.

It is first argued that under Sections 431 and 432, supra, it is the duty of the plaintiffs to furnish a bond approved by the county clerk. The bond was never introduced in the proceedings, although there is evidence in the record that the trial court examined the bond. We think the record discloses that a bond was tendered, accepted and filed. Defendants cite Monroe v. Beebe, 10 Okl. 581, 64 P. 10. That case is rather an authority for the position of plaintiffs. The county clerk therein .refused to accept and file the bond offered by the plaintiffs. This was a positive act of the clerk acting under Sections 431 and 432, supra, and it was held that he acted within his discretion. Here the clerk performed the positive act of accepting and filing the bond and thereafter prepared the transcript for filing in the district court and it was filed in the district court on the same day the bond was filed. In the absence of a statute requiring that the county clerk endorse on the bond his approval we hold the bond sufficient.

In the other proposition defendants argue that the order made by the Board o.n August 19 is not subject to review. Defendants cite Chandler Materials Co. v. Board of County Com’rs of Tulsa County, 208 Okl. 189, 254 P.2d 767; State v. Ramirez, 34 Idaho, 623, 203 P. 279, 29 A.L.R. 297; In re Assessment of Kansas City Southern Ry. Co., 168 Okl. 495, 33 P.2d 772, as supporting the rule that the action of the Board of County Commissioners . is legislative, and there is no appeal therefrom. We see no need to analyze these cases. They are not in point. We have found no case directly in point. In Fletcher v. Board of County Com’rs, Oklahoma County, Okl., 285 P.2d 183, this court considered and determined the issues of an appeal without discussing the right to appeal, and without observing or recognizing any question thereof. In Robberson v. Board of County Com’rs, Okl., 302 P.2d 784, we cited Fletcher v. Board of County Com’rs, supra, as authority for affirming. In Fletcher v. Board of County Commissioners, supra, there is cited with approval Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38, 42, 7 A.L.R.2d 990, in which it is stated: .

“The courts will, of course, inquire as to whether the scheme of classification and districting is arbitrary or unreasonable, but the decision of the zoning authorities as to matters of opinion and policy will not be set aside or disregarded by the courts unless the regulations have no reasonable relation to the public welfare or unless the physical facts show that there has been an unreasonable, oppressive, or unwarranted interference with property rights in the exercise of the policy power. * * * ”

In Wakefield v. Kraft, 202 Md. 136, 96 A.2d 27, 29, it is stated:

“ * * * It is not the function, duty or right of a Court to zone or rezone, but only to determine whether the legislative body has properly applied the governing law to the facts. * * ”

Obviously, the legality and propriety and the proper application of the order and resolution and action of the Board of County Commissioners can only be determined in a review by the court. Until there is a review by the court there is no determination by due process of the fair and reasonable application of the order or action granting the application to rezone the private property of the applicant.

Defendants cite no zoning case and we have found none involving a similar fact situation in which an appeal or a review by the court has been denied. When there is an allegation of, or showing, that a property owner has been injuriously and adversely affected by the granting of an application for the rezoning of privately owned property, we hold an appeal and access to a court of proper jurisdiction is indispensable to a determination of the reasonableness of the granting of such application in view of the property affected. See, in this connection, Stuart v. King, 203 Okl. 23, 217 P.2d 540, cited in Chandler Materials Co. v. Board of County Commissioners, supra. The trial court erred in dismissing the appeal from the Board of County Commissioners.

The District Court judgment of dismissal is reversed, and the cause is remanded, with directions to vacate the order dismissing, and to reinstate the appeal from the Board of County Commissioners, and to hear and determine the same.

DAVISON, C. J.', and HALLEY, JOHNSON and BLACKBIRD, JJ., concur. WILLIAMS, V. C. J., and JACKSON and IRWIN, JJ., dissent.