I inherited a case involving a temporary injunction that was filed against
a municipality I now represent. It appears that a commercial property in
town has junk (nuisance) on its property and signage that is placed in
violation of the town code. However, the previous city attorney (who is now
deceased) agreed to the citizen's request for a temporary injunction
enjoining the municipality from enforcing it's town code against the
property based on the fact that the code had not been recodified within the
the 10 year time frame provided by statute. The municipality has since
recodified its ordinances, but the temporary injunction has been hanging
out there since 2018.

My first question is whether the property's improperly placed signage,
which violates setback ordinances, is essentially grandfathered in
subsequent to the recodification.

My second question is whether there are procedural pitfalls to contesting
the temporary injunction despite it being in place since 2018? E.g. an
estoppel or laches problem.

Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.com

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Whether there will be difficulty in setting aside the order granting the temporary injunction depends on additional facts.  Under 12 § 993, an order granting temporary injunctive relief “may” be immediately appealed.  But it is not a requirement.  I would want to be certain that the 2018 order is truly a “temporary” injunction.  Sometimes a hearing on a temporary injunction is converted to a permanent injunction.  If the city attorney was agreeable to the injunction, I would want to be certain it was not converted into an order for permanent injunctive relief.  Is the case still open?  If the order is a temporary provisional remedy order, and the case is still open, then I think there is no legal impediment to setting aside the temporary injunction.  Laches or estoppel should not apply because the property owner was the plaintiff and it is generally the plaintiff’s obligation to move his case to completion.  In fact, the city could consider a Rule 9 motion to dismiss for failure to prosecute.  However, the COVID-related suspensions may make that more difficult.  Regardless, plaintiff could have moved the case by filing a motion to enter or otherwise pushed the case to a final judgment.

I would look to see if there is a bond in place.  If there is no posted bond, and it is truly a temporary order, then the temporary injunction has never gone into effect and is not impediment to the city.  See, 12 O.S. § 1392 (“Unless otherwise provided by special statute, no injunction shall operate until the party obtaining the same shall give an undertaking, with sufficient surety, to be approved by the clerk of the court granting such injunction, in an amount to be fixed by the court or judge allowing the same”).  If it is a permanent injunction, no bond is required.  If there is no bond, plaintiff’s counsel could argue the lack of a bond supports an argument that the injunction was intended to be permanent and not temporary.

I believe that failure to codify a city’s ordinances prohibit the city from enforcing any penal ordinances, but I do not think that a city is prohibited from enforcing its zoning code if its ordinances are not codified.  Codification is not mandatory for ordinances generally, although publication is required (unless excepted).  See, 11 O.S. §14-108 (“governing body of a municipality may, from time to time, authorize a codification of its ordinances”).

Good luck.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

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From: Phillip Morton mortonlawoffice@gmail.com
Sent: Thursday, May 26, 2022 2:01 PM
To: oama@lists.imla.org
Subject: [Oama] Codification and prior violations questions

I inherited a case involving a temporary injunction that was filed against a municipality I now represent. It appears that a commercial property in town has junk (nuisance) on its property and signage that is placed in violation of the town code. However, the previous city attorney (who is now deceased) agreed to the citizen's request for a temporary injunction enjoining the municipality from enforcing it's town code against the property based on the fact that the code had not been recodified within the the 10 year time frame provided by statute. The municipality has since recodified its ordinances, but the temporary injunction has been hanging out there since 2018.

My first question is whether the property's improperly placed signage, which violates setback ordinances, is essentially grandfathered in subsequent to the recodification.

My second question is whether there are procedural pitfalls to contesting the temporary injunction despite it being in place since 2018? E.g. an estoppel or laches problem.

Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto:MortonLawOffice@gmail.com

CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.