My city council recently declined a special permit request for a property owner and prospective buyer of the property to operate an open display business. The special permit was denied by the City Council, but the applicants failed to appeal or seek a variance with the Board of Adjustment.  Instead, the applicants filed suit in the district court. The case was dismissed for lack of jurisdiction for failure to exhaust administrative remedies by pursuing the statutory and ordinance requirements of appeal to the Board of Adjustment.

The applicant has indicated that he is going to seek another special permit and then go through the entire process again.  I am well familiar with Hargarve v. Tulsa Bd. of Adjustment, 2002 OK 73, wherein the Oklahoma Supreme Court held that failing to appeal a board of adjustment's decision to the district court timely is fatal to the appeal. But, I am struggling to find any authority regarding boards of adjustment and finality of a decision post appeal. Burkhart's Estate v. Wabaunsee, 1979 OK 56, states "A dismissal operates as a re-transfer of the cause to the trial court where it then stands in the same posture as if no appeal had ever been taken." 1979 OK 56, ¶ 6, 594 P.2d 361, 363.  I think I could make a good argument that this particular application is dead.

But, I get the sense that the decision regarding the special use permit is not final because there has not been a final determination on the merits by the board of adjustment.  Even though the time period for appeal is over on the initial application; I have not been  able to find any authority to shut down any further applications for the same special use permit under these circumstances.  Any briefs, authority, or insight would be very helpful.

Thanks,

Ray

[cid:image001.png@01D9F83C.84343340]

Robert Ray Jones, Jr., Director
119 N. Robinson Ave., Suite 1200
Oklahoma City, OK 73102
405-235-7471 |  405-232-3852 (fax)
www.lytlesoule.comhttp://www.lytlesoule.com/

IMPORTANT NOTICE:
This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and is intended to be delivered only to the named addressee(s). E-mail to clients of this firm presumptively contain privileged and confidential information.  E-mail to non-clients are presumptively confidential and may be privileged.  The information transmitted is intended only for the person or entity to which it is addressed.  Any review, retransmission, dissemination or other use of this information, directly or indirectly, by persons or entities other than the intended recipient is prohibited.  If you received this in error, please contact the sender and delete the material from all computers in which it resides.

Good try Ray???  I ask you yesterday after hearing what authority you have to stop from refiling???  You were sure that you had authority I guess not!!!!!!!!!!!!!!!!!  Please reconsider my offer?

CHRIS HARPER INC
PO BOX 5888
EDMOND OK 73013
PHONE: 405-359-0600
FAX: 405-340-1973
charper@ChrisHarperLaw.com

From: Ray Jones via Oama oama@lists.imla.org
Sent: Friday, October 6, 2023 11:01 AM
To: oama@lists.imla.org
Subject: [Oama] Infinite Special Permit Request

My city council recently declined a special permit request for a property owner and prospective buyer of the property to operate an open display business. The special permit was denied by the City Council, but the applicants failed to appeal or seek a variance with the Board of Adjustment.  Instead, the applicants filed suit in the district court. The case was dismissed for lack of jurisdiction for failure to exhaust administrative remedies by pursuing the statutory and ordinance requirements of appeal to the Board of Adjustment.

The applicant has indicated that he is going to seek another special permit and then go through the entire process again.  I am well familiar with Hargarve v. Tulsa Bd. of Adjustment, 2002 OK 73, wherein the Oklahoma Supreme Court held that failing to appeal a board of adjustment's decision to the district court timely is fatal to the appeal. But, I am struggling to find any authority regarding boards of adjustment and finality of a decision post appeal. Burkhart's Estate v. Wabaunsee, 1979 OK 56, states "A dismissal operates as a re-transfer of the cause to the trial court where it then stands in the same posture as if no appeal had ever been taken." 1979 OK 56, ¶ 6, 594 P.2d 361, 363.  I think I could make a good argument that this particular application is dead.

But, I get the sense that the decision regarding the special use permit is not final because there has not been a final determination on the merits by the board of adjustment.  Even though the time period for appeal is over on the initial application; I have not been  able to find any authority to shut down any further applications for the same special use permit under these circumstances.  Any briefs, authority, or insight would be very helpful.

Thanks,

Ray

[cid:image001.png@01D9F845.91ECFE00]

Robert Ray Jones, Jr., Director
119 N. Robinson Ave., Suite 1200
Oklahoma City, OK 73102
405-235-7471 |  405-232-3852 (fax)
www.lytlesoule.comhttp://www.lytlesoule.com/

IMPORTANT NOTICE:
This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and is intended to be delivered only to the named addressee(s). E-mail to clients of this firm presumptively contain privileged and confidential information.  E-mail to non-clients are presumptively confidential and may be privileged.  The information transmitted is intended only for the person or entity to which it is addressed.  Any review, retransmission, dissemination or other use of this information, directly or indirectly, by persons or entities other than the intended recipient is prohibited.  If you received this in error, please contact the sender and delete the material from all computers in which it resides.

It would have been nice to give the true facts of case where your client is preventing a business that has been open 40 yrs and your preventing him from selling his used car lot of owner age 87.
CHRIS HARPER INC
PO BOX 5888
EDMOND OK 73013
PHONE: 405-359-0600
FAX: 405-340-1973
charper@ChrisHarperLaw.com

From: Ray Jones via Oama oama@lists.imla.org
Sent: Friday, October 6, 2023 11:01 AM
To: oama@lists.imla.org
Subject: [Oama] Infinite Special Permit Request

My city council recently declined a special permit request for a property owner and prospective buyer of the property to operate an open display business. The special permit was denied by the City Council, but the applicants failed to appeal or seek a variance with the Board of Adjustment.  Instead, the applicants filed suit in the district court. The case was dismissed for lack of jurisdiction for failure to exhaust administrative remedies by pursuing the statutory and ordinance requirements of appeal to the Board of Adjustment.

The applicant has indicated that he is going to seek another special permit and then go through the entire process again.  I am well familiar with Hargarve v. Tulsa Bd. of Adjustment, 2002 OK 73, wherein the Oklahoma Supreme Court held that failing to appeal a board of adjustment's decision to the district court timely is fatal to the appeal. But, I am struggling to find any authority regarding boards of adjustment and finality of a decision post appeal. Burkhart's Estate v. Wabaunsee, 1979 OK 56, states "A dismissal operates as a re-transfer of the cause to the trial court where it then stands in the same posture as if no appeal had ever been taken." 1979 OK 56, ¶ 6, 594 P.2d 361, 363.  I think I could make a good argument that this particular application is dead.

But, I get the sense that the decision regarding the special use permit is not final because there has not been a final determination on the merits by the board of adjustment.  Even though the time period for appeal is over on the initial application; I have not been  able to find any authority to shut down any further applications for the same special use permit under these circumstances.  Any briefs, authority, or insight would be very helpful.

Thanks,

Ray

[cid:image001.png@01D9F846.06534560]

Robert Ray Jones, Jr., Director
119 N. Robinson Ave., Suite 1200
Oklahoma City, OK 73102
405-235-7471 |  405-232-3852 (fax)
www.lytlesoule.comhttp://www.lytlesoule.com/

IMPORTANT NOTICE:
This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and is intended to be delivered only to the named addressee(s). E-mail to clients of this firm presumptively contain privileged and confidential information.  E-mail to non-clients are presumptively confidential and may be privileged.  The information transmitted is intended only for the person or entity to which it is addressed.  Any review, retransmission, dissemination or other use of this information, directly or indirectly, by persons or entities other than the intended recipient is prohibited.  If you received this in error, please contact the sender and delete the material from all computers in which it resides.

Wouldn't the Council's decision, which stands unappealed, act as res judicata to any subsequent application?

Kim

From: Ray Jones via Oama oama@lists.imla.org
Sent: Friday, October 6, 2023 11:01 AM
To: oama@lists.imla.org
Subject: [Oama] Infinite Special Permit Request

My city council recently declined a special permit request for a property owner and prospective buyer of the property to operate an open display business. The special permit was denied by the City Council, but the applicants failed to appeal or seek a variance with the Board of Adjustment.  Instead, the applicants filed suit in the district court. The case was dismissed for lack of jurisdiction for failure to exhaust administrative remedies by pursuing the statutory and ordinance requirements of appeal to the Board of Adjustment.

The applicant has indicated that he is going to seek another special permit and then go through the entire process again.  I am well familiar with Hargarve v. Tulsa Bd. of Adjustment, 2002 OK 73, wherein the Oklahoma Supreme Court held that failing to appeal a board of adjustment's decision to the district court timely is fatal to the appeal. But, I am struggling to find any authority regarding boards of adjustment and finality of a decision post appeal. Burkhart's Estate v. Wabaunsee, 1979 OK 56, states "A dismissal operates as a re-transfer of the cause to the trial court where it then stands in the same posture as if no appeal had ever been taken." 1979 OK 56, ¶ 6, 594 P.2d 361, 363.  I think I could make a good argument that this particular application is dead.

But, I get the sense that the decision regarding the special use permit is not final because there has not been a final determination on the merits by the board of adjustment.  Even though the time period for appeal is over on the initial application; I have not been  able to find any authority to shut down any further applications for the same special use permit under these circumstances.  Any briefs, authority, or insight would be very helpful.

Thanks,

Ray

[cid:image001.png@01D9F847.86A24C10]

Robert Ray Jones, Jr., Director
119 N. Robinson Ave., Suite 1200
Oklahoma City, OK 73102
405-235-7471 |  405-232-3852 (fax)
www.lytlesoule.comhttp://www.lytlesoule.com/

IMPORTANT NOTICE:
This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and is intended to be delivered only to the named addressee(s). E-mail to clients of this firm presumptively contain privileged and confidential information.  E-mail to non-clients are presumptively confidential and may be privileged.  The information transmitted is intended only for the person or entity to which it is addressed.  Any review, retransmission, dissemination or other use of this information, directly or indirectly, by persons or entities other than the intended recipient is prohibited.  If you received this in error, please contact the sender and delete the material from all computers in which it resides.