
    2007 OK CIV APP 2
    TOWN OF WELLSTON, Plaintiff/Appellant, v. Kevin W. WALLACE and Angela Wallace, Husband and Wife, and James R. Jackson, Jr., Defendants/Appellees.
    No. 102,504.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Dec. 15, 2006.
    
      James J. Hodgens, Hodgens & Burleson, P.A., Stroud, OK, for Plaintiff/ Appellant,
    Miles C. Zimmerman, Zehra Jaffrey, Chandler, OK, for Defendants/Appellees.
   CAROL M. HANSEN, Judge.

T1 Plaintiff/Appellant, Town of Wellston, Oklahoma (Town), seeks review of the trial court's order determining there were no issues left for resolution following its denial of Town's motion for summary judgment in its action to enjoin a zoning violation. We affirm because Town failed to show it complied with statutory prerequisites for exercising zoning power.

12 Town sued Kevin Wallace and Angela Wallace (Owners), seeking an injunction to prevent them from operating the subject property as commercial property in violation of Town's zoning ordinances. Owners answered and counterclaimed for damages. Town moved to add James Jackson as a party defendant, alleging Owners had conveyed the property to him. Town then moved for summary judgment, asserting Owners' property was zoned residential but Owners had placed commercial vehicles, fencing, buildings, and other appurtenances on the property without obtaining building permits, zoning changes, or variances. Town asserted that after construction on the property was substantially complete, Owners applied for a building permit and zoning variance. Town asserted its "City Council acting in its capacity as its Planning Commission" denied the request.

T3 Town stated it had ordinances creating a planning commission and board of adjustment, but according to the affidavit of its mayor, "Town ... at all relevant times in these proceedings, has not had a town planning commission or a board of adjustment due to the fact that individuals have been unwilling to serve in such a capacity." Town argued its governing body, the Board of Trustees, was vested with the power to grant and deny zoning variances, as well as the power to hear appeals of zoning variance denials.

T4 In response, Owners contended they were entitled to a variance, but Town violated their due process rights when the Board of Trustees acted on their application in the absence of a board of adjustment. Owners argued Town had no power to enact and enforce zoning regulations in the absence of a planning commission. They asserted the structures on their property were not a threat to public health or safety, and Town was not entitled to an injunction because it had failed to show the act sought to be enjoined would injure Town.

15 The trial court denied Town's motion for summary judgment, ruling "[wiithout a board of adjustment there was no body to appeal to or from that would invoke the Jurisdiction of this Court." After the parties sought clarification, the trial court entered an order determining "there are no issues left for resolution," and acknowledging Owners' dismissal in open court of their counterclaim. Town appeals from this order.

{6 The trial court's order had the effect of refusing an injunction. Therefore, it is a final, appealable order pursuant to 12 0.8.2001 § 952(b)(2).

T7 Municipalities are authorized to enact zoning regulations to promote the health, safety, morals, or the general welfare of the community. 11 0.S$.2001 § 43-101. However, "[iJn order to avail itself of [zoning] powers ..., the municipal governing body shall appoint a commission to be known as the zoning commission to recommend the boundaries of the various original districts and to recommend appropriate regulations to be enforced therein." § 48-109. In addition, "[wlhere a municipality is exercising zoning powers, ... the governing body of the municipality shall provide by ordinance for the appointment of a Board of Adjustment." § 44-101. The powers of the board of adjustment include hearing and deciding (1) appeals of decisions made by an administrative official in the enforcement of any zoning ordinance, (2) special exceptions to zoning ordinances, and (8) variances from the terms, standards and criteria pertaining to an allowed use category within a zoning district. The municipality's power to enact zoning ordinances is legislative, while the board of adjustment's power is adjudicative in nature. Vinson v. Medley, 1987 OK 41, 737 P.2d 932, 936. Pursuant to these statutes, a municipality must have both a zoning commission and board of adjustment in order to exercise its zoning authority. It may not do so in their absence.

%8 The proscription against dual office holding does not apply to municipal officers serving on a municipal board or commission "except where the duties of the offices or positions conflict." 51 0.8.8upp.2004 § 6. While there might be no conflict in a board of trustees member serving as a planning commission member, there is a clear conflict in such an officer serving on the board of adjustment which hears appeals of decisions made by other municipal officers. Therefore, a member of the board of trustees may not serve on the board of adjustment. By failing to have a board of adjustment, Town has failed to comply with statutory prerequisites for exercising zoning power and is not entitled to an injunction under the current cireumstances in this case.

T9 Accordingly, the trial court's order is AFFIRMED.

BELL, P.J., and JOPLIN, J., concur.

18 Chief Justice DURHAM, Associate Chief Justice WILKINS, Justice DURRANT, and Justice PARRISH concur in Justice NEHRINGS opinion.  