i Wi ORIGINA' he NOT FOR OFFICIAL PUBLICATION IN THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA FILED DIVISION IV COURT OF CIVIL APPEALS STATE OF OKLAHOMA CJIT, LLC, an Oklahoma Limited JUN 1.0 2021! Liability Company, JOHN D. HADDEN CLERK Plaintiff? Appellant, vs. Case No. 119,431 ) ) ) ) ) ) ) ) ree’ (date) 1Q- THE CITY OF EDMOND, OKLAHOMA, a municipal corporation; ) THE CITY COUNCIL FOR THE CITY ) OF EDMOND, a municipal governing) Body, ) ) Defendants/Appellees. ) APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE ALETIA HAYNES TIMMONS, TRIAL JUDGE. AFFIRMED Mason J. Schwartz WILLIAMS, BOX, FORSHEE & BULLARD, P.C. Oklahoma City, Oklahoma For Plaintiff/Appellant Richard E. Hornbeek HORNBEEK VITALI & BRAUN, P.L.L.C. Oklahoma City, Oklahoma For Defendants/AppelleesOPINION BY STACIE L. HIXON, PRESIDING JUDGE: CUIT, LLC (“Landowner”) appeals a February 24, 2021 Journal Entry of Judgment denying its motion for summary judgment and granting the motion for summary judgment filed by The City of Edmond and the City Council for the City of Edmond (collectively, “the City”). Based on our review of the record and applicable law, we affirm the district court’s order. BACKGROUND Landowner owns real property located at the street address of 1601 South Boulevard Street in the City of Edmond. The property is currently zoned as “D-O Suburban Office,” a designation that does not allow for retail uses on the property. An existing building sits on the property, which previously housed a dental office but is now vacant. A single-family residential property is located directly to the west of the subject property. Landowner submitted a Planned Unit Development (PUD) application to the City, seeking to rezone the property to allow for a retail medical marijuana dispensary to be operated on the property. The Edmond Planning Commission recommended approval of the PUD application. However, at a City Council meeting held on May 26, 2020, the City Council voted against the proposal, with four members voting against and one member voting in favor.Landowner filed suit in the district court on June 18, 2020. The petition alleged that the City Council’s decision to deny the PUD application was arbitrary, unreasonable, and capricious, and that the decision bore no reasonable relation to the public health, safety, morals, or general welfare. As a remedy, Landowner requested the district court enter a decree prohibiting the City from enforcing zoning regulations inconsistent with those set forth in the PUD application. Subsequently, the City filed a motion for summary judgment, alleging the undisputed material facts showed the City’s decision was fairly debatable, and therefore, must be allowed to control in accordance with Oklahoma Supreme Court precedent. Landowner filed a combined response to the motion and counter motion for summary judgment, to which the City filed a reply and response, respectively. On February 24, 2021, the district court filed a Journal Entry of Judgment, memorializing its decision granting the City’s motion for summary judgment and denying Landowner’s motion.' Landowner appeals. | The journal entry states a hearing was held on the motions via video conference. However, a transcript of the hearing, if any was made, is not included in the record. 3STANDARD OF REVIEW ‘The standard for review of a summary judgment is de novo, which requires us to perform an independent and non-deferential review of the legal sufficiency of the evidential materials used in support of and against the motion for summary judgment, Boyle v. ASAP Energy, Inc., 2017 OK 82, J 7, 408 P.3d 183. Summary judgment is proper when a party is entitled to judgment as a matter of law based on the submitted evidentiary materials when all inferences and conclusions to be drawn therefrom are viewed in the light most favorable to the party opposing the motion, Id. Summary judgment is improper when reasonable persons may reach different inferences or conclusions from the undisputed facts. Jd. ANALYSIS Landowner alleges the district court erred by granting the City’s motion for summary judgment and denying its motion for summary judgment. Municipal zoning is a legislative function that requires the exercise of legislative judgment, and such decisions are afforded the presumption of validity. Mid-Continent Life Ins. Co. v. City of Oklahoma City, 1985 OK 41,49, 701 P.2d 412. Moreover, the decision to approve a PUD application that includes rezoning a particular area is a legislative and discretionary act by a municipality’s governing body. Kent v. City of Oklahoma City, 2020 OK CIV APP 21, { 24, 467 P.3d 726.The district court will not override the municipality’s zoning decision unless the court finds the decision does not have a substantial relation to the public health, safety, morals or general welfare or is an unreasonable, arbitrary exercise of police power. Mid-Continent Life Ins. Co., 1985 OK 41, at $9. If the validity of the challenged zoning decision is “fairly debatable,” the legislative judgment of the municipality must stand. Id; Sand Springs Materials LLC v. City of Sand Springs, 2010 OK CIV APP 128, 43, 243 P.3d 768. A zoning classification is fairly debatable if reasonable persons could differ as to whether it is reasonable, Heisler v, Thomas, 1982 OK 105, 45, 651 P.2d 1330. When making such determination, the district court considers the “basic physical facts involved.” Hoffman v. City of Stillwater, 1969 OK 190, | 19, 461 P.2d 944. In this case, we are reviewing the district court’s summary judgment decision where the “basic physical facts” about the subject property and its surroundings are largely undisputed.? Thus, we consider if the undisputed material facts, viewed in the light most favorable to Landowner, show reasonable people could not disagree that the City Council’s decision was “fairly debatable,” rendering summary judgment for the City proper. 2 ‘The record shows there is no dispute about the zoning classifications of the properties surrounding the one at issue, though the parties disagree over the words used to describe certain ‘geographic locations and features. However, the parties attached various maps of the area as evidentiary materials to their motions for summary judgment, which speak for themselves, a‘As noted above, the subject property previously housed a dental office and is currently zoned as “D-O Suburban Office,” which does not allow for retail uses on the property. It is undisputed that the properties directly west of the subject property are zoned “‘A’ Single Family” and are used residentially. As Landowner noted in briefing to the district court, the properties to the north and east of the subject property and adjoining residential properties are zoned “D-2 Neighborhood Commercial District,” and contain a variety of retail establishments. Notably, the maps show the properties to the north are separated by a roadway, and the property to the east is separated by a four-lane street, Landowner also noted the property to the south is zoned “to allow various retail uses, including Dispensaries.” However, the property is vacant, does not house any buildings, and is separated by a roadway. As noted in the minutes of the City Council meeting, there is also a creek on the property to the south that “would provide a decent buffer” for the residential properties, assuming anything is built there in the future. We also note that the Oklahoma Supreme Court recognizes that if the “mere proximity of residential property to commercial uses was enough to mandate rezoning, land reserved for residential purposes would be constantly endangered as outward boundaries fell through a continuing erosion process.” Mid-Continent Life Ins. Co., 1985 OK 41, at § 16. Although the subject property is zoned to allow for limited commercial uses (i.e., office uses), we find the existence of retailestablishments to the north and east did not require the subject property, which is directly next door to a residential property, to be rezoned to allow for a retail use, specifically a medical marijuana dispensary. At best, the subject property and adjoining residential property’s proximity to the retail establishments rendered the issue “fairly debatable,” which required the district court to defer to the City’s decision. Furthermore, we note that in some instances the Supreme Court has affirmed a district court’s imposition of a specific zoning classification over the City’s decision not to rezone “where the record reveals such classification was not ‘fairly debatable’ but rather the only reasonable zoning.” Garrett v. City of Oklahoma City, 1979 OK 60, { 8, 594 P.2d 764. In other words, “unless there is no credible, reasonable dispute as to the properly applicable use,” the rezoning of the property is strictly reserved to the city as a legislative function. Lynch v. City of Oklahoma City, 1981 OK CIV APP 11, $18, 629 P.2d 1289. In the present case, the undisputed facts show that rezoning the property to allow for a retail medical marijuana dispensary was not the “only reasonable zoning.” Indeed, the property was previously used as a dental office. Pursuant to City Ordinance Title 22, Chapter 4, § 2.4.35, many other uses of the property were allowed by the “D-2 Suburban Office” designation, including as a bank or other financial institution, computer and data processing service, professional oradministrative office, medical marijuana research facility, medical marijuana testing laboratory, television or radio studio without an antenna, and a travel agency.’ Thus, Landowner has a variety of options available for using the property other than as a retail establishment." Viewing the above undisputed facts in the light most favorable to Landowner, we find reasonable people could not disagree that the City’s decision was “fairly debatable.” ‘Thus, the City was entitled to summary judgment as a matter of law. CONCLUSION We therefore affirm the district court’s February 24, 2021 Journal Entry of Judgment granting the City’s motion for summary judgment and denying Landowner’s motion for summary judgment. AFFIRMED. FISCHER, V.C.J., and RAPP, J., concur. June 10, 2021 >The Ordinance spe and generate minimal traffi lly states that such uses “are compatible with residential uses “We also note the City Council meeting minutes state the members received correspondence from neighboring property owners about their concerns with the proposed rezoning, and a local resident spoke at the meeting in opposition to rezoning. In briefing to the district court, Landowner argued the “neighborhood protests” were not a reasonable and proper basis for denying its PUD application. In persuasive authority, the Court has found that to refuse rezoning “merely because a large number of people are against it” is condemnable. See Pate v. City of Bethany, 1983 OK CIV APP 44, $10, 672 P.2d 677. However, in its response and counter motion for summary judgment, Landowner provided no evidentiary materials showing the zoning decision was exclusively based on the complaints. 8