Can a city's zoning denial block a county from building a new jail on county-owned land within the city limits, or does the county get to override the city?

Subject

Attorney General Opinion about Oklahoma County's authority to construct a new jail within the municipal limits of the City of Oklahoma City.

Plain-English summary

Oklahoma County voters approved $260 million in bonds in 2022 to build a new county jail. The county bought a property within Oklahoma City limits. Oklahoma City's planning staff recommended approving the special use permit; the city council denied it. The county sued, and Rep. Jon Echols asked the AG to weigh in.

The AG held the county is immune from the city's zoning denial under the Rutgers balancing-of-interests test that Oklahoma adopted in 1986 (City of Oklahoma City v. Indep. Sch. Dist. No. 89 of Oklahoma Cnty.). Oklahoma is no longer a "superior sovereign" jurisdiction; one government doesn't automatically win over another. Instead, courts weigh five factors:

1. The nature and scope of the entity seeking immunity.
2. The kind of function or land use involved.
3. The extent of the public interest served.
4. The effect local zoning would have on the enterprise.
5. The impact on legitimate local interests.

Applying those factors here, the AG found:
- Counties must have a jail by statute (57 O.S. § 41); building one is core function.
- The voters approved the bond with nearly 60% support.
- Oklahoma City's own planning staff already greenlit the permit before the council overrode them.
- The proposed site is heavy industrial zoning and away from schools, daycares, and houses of worship.
- The county participated in good faith in the city's permitting process.

The AG noted the city council's behavior, both denying despite staff recommendation and refusing to negotiate further after mediation, smacked of "bad-faith politics of obstruction and obstinance." But the AG cautioned the county against "carte blanche discretion to run roughshod" and urged continued consultation with the city.

What this means for you

For county commissioners siting controversial facilities (jails, landfills, treatment centers, training academies)

You don't need to be a "superior sovereign." You need to (a) be doing a function the legislature mandated or strongly authorized, (b) demonstrate the public interest in the project, (c) document your good-faith efforts to work with the affected municipality, and (d) pick a site that doesn't trample obvious local interests (sensitive land uses next door, traffic chokepoints, environmental hazards). Build that record before you litigate. The Rutgers factors are weighed; missing factor 4 (you ignored the city) or factor 5 (you sited it next to an elementary school) can sink immunity.

This opinion is binding on Oklahoma County; if you're a different county, it's persuasive but not controlling on your facts. The framework, though, is the law statewide.

For municipal councils tempted to deny permits for unwanted county facilities

Don't assume your zoning power lets you block a county from doing what state law requires. If your planning staff has already recommended approval, that fact will weigh against your council's denial in the Rutgers analysis. The AG's opinion explicitly noted the city council "flouted its own Planning Department and Commission's recommendation." If you have substantive objections (proximity to schools, traffic, environmental), put them on the record at the planning stage in a way the planning commission has to address, instead of overriding a clean staff recommendation at the council level.

If you want to negotiate site changes, traffic mitigation, or community benefits, the AG opinion endorses that approach. Refusing to negotiate after mediation, as Oklahoma City did, weakens the city's position in the Rutgers balancing.

For city planning departments

Your formal recommendation matters. Oklahoma's appellate courts and now the AG treat the planning staff's recommendation as evidence in the immunity analysis. Be rigorous and complete in your evaluation; if there are real concerns, capture them in your recommendation, even if you're approving the permit.

For citizens and neighborhood groups

The Rutgers test gives weight to legitimate local interests. If you have a serious concern about a proposed county facility (proximity to schools, environmental impact, traffic), engage at the planning stage with documented evidence. Vague community opposition without specific impacts is not the kind of "legitimate local interest" that overcomes the public interest in a county facility.

For attorneys litigating county-vs-city land use disputes in Oklahoma

This opinion confirms that the Rutgers framework from City of Oklahoma City (1986) is alive and well. The 1977 Suntide Inn Motel "superior sovereign" approach is dead. Brief your case in Rutgers terms. Build the record on each of the five factors. The AG opinion's application here is fact-specific (and arguably tilted) but the legal framework is settled.

Common questions

Why did the AG issue an opinion on a question that's already in court?

The AG's opinion notes a deviation from the office's normal policy of not opining on issues pending in court, citing the "exigent nature" of the request and "the impending expiration of federal funds dedicated to partially finance the construction of the new detention center." The deviation matters: ordinarily AG opinions on litigation are unusual.

Are AG opinions binding on local governments?

Generally yes. Under 74 O.S. § 18b and Hendrick v. Walters, "local public officers, including county and municipal officers, must follow and not disregard opinions or advice from this office until judicially relieved of compliance." A public officer who acts in conformity with an AG opinion is afforded protection from civil liability under Rasure v. Sparks. So unless and until the court overrides this opinion, the parties are expected to act under it.

Did the AG decide who wins the lawsuit?

Functionally yes for the immunity question. The AG concluded that Oklahoma County enjoys Rutgers immunity from Oklahoma City's zoning power for this jail project. The court will make the final call but the AG's analysis is binding on state and local officials in the meantime.

What are the five Rutgers factors again?

(1) Nature and scope of the entity seeking immunity. (2) Kind of function or land use involved. (3) Extent of the public interest. (4) Effect of local zoning on the enterprise. (5) Impact on legitimate local interests. No factor is determinative; "one factor [may] be more influential than another or may be so significant as to completely overshadow all others" (Rutgers, quoted by the Oklahoma Supreme Court in City of Oklahoma City).

What if the city had legitimate concerns the planning staff missed?

The AG opinion treats failure to raise concerns at the planning stage as a weakness in the city's position. A municipality that wants to block a county project under Rutgers needs to put its objections on the record early and engage in good faith with proposed mitigation. Last-minute council overrides of staff recommendations get little weight.

Does this opinion give counties unlimited zoning immunity?

No. The opinion expressly says the county does not have "carte blanche discretion to run roughshod in disregard of Oklahoma City's valid and pressing concerns." Rutgers immunity comes with a duty to consult and a limit: "a political subdivision cannot arbitrarily override all important legitimate local interests."

Background and statutory framework

Oklahoma's intergovernmental zoning doctrine has two eras:

Era 1 (pre-1986): the "superior sovereign" rule. Under In re Suntide Inn Motel, the higher-level government simply won. State trumped county; county trumped city. This was a bright-line rule that ignored the realities of local impact.

Era 2 (1986 to present): the Rutgers balancing test. In Indep. Sch. Dist. No. 89 of Oklahoma Cnty. v. City of Oklahoma City, the Oklahoma Supreme Court overruled Suntide Inn and adopted the five-factor balancing test from the New Jersey Supreme Court's decision in Rutgers, State University v. Piluso. The Court extended this rule "to the state and its instrumentalities [and] to lesser governmental entities entitled to immunity." A previous AG opinion (1998 OK AG 2) confirmed that even the State itself can't claim sovereign superiority against a municipality; if the State must use the Rutgers test, so must counties.

Counties, in turn, are statutorily required to "have a jail or access to a jail" (57 O.S. § 41). The sheriff has charge of the county jail (§ 47), and the county is responsible for upkeep (§ 51). Oklahoma County's bond election in 2022 (60% in favor) and the impending expiration of federal ARPA funds gave the project significant momentum. The Oklahoma City planning staff recommended approval; the city council denied. Litigation followed.

The AG applied the five factors and concluded each weighed in the county's favor or, in the case of factor 1, was "not determinative." Factor 5 (impact on legitimate local interests) was the most contested, and the AG held the city's interests had already been "handled by experts within Oklahoma City's Planning Department and Planning Commission; both recommended approval." The AG noted the project also serves "broader governmental interests" sufficient to overcome local objections.

Citations

• 57 O.S. § 41 (every county must have a jail or access to one)
• 57 O.S. § 47 (sheriff has charge of the county jail)
• 57 O.S. § 51 (county responsibility for jail upkeep and care of inmates)
• 74 O.S. § 18b (binding effect of AG opinions on state and local officers)
• 74 O.S. § 18b(A)(5) (AG cannot resolve fact-intensive questions)
• 74 O.S. § 192 (state jail inspections)
• 22 O.S. §§ 1181-1197 (removal of officers)
• Oklahoma Constitution, Article 6, § 1 (executive department)
• Oklahoma Constitution, Article 8, § 1 (impeachment)
• Oklahoma Municipal Code, Article 43 (municipal zoning)
• Indep. Sch. Dist. No. 89 of Oklahoma Cnty. v. City of Oklahoma City, 1986 OK 47, 722 P.2d 1212 (adopting Rutgers test, overruling Suntide Inn)
• Rutgers, State University v. Piluso, 60 N.J. 142, 286 A.2d 697 (1972) (source of the five-factor balancing test)
• In re Suntide Inn Motel, Oklahoma City, 1977 OK 62, 563 P.2d 125 (overruled; superior sovereign test)
• City of Moore v. Atchison, Topeka, & Santa Fe Ry. Co., 699 F.2d 507 (10th Cir. 1983)
• Dev. Industries, Inc. v. City of Norman, 1966 OK 59, 412 P.2d 953
• State ex rel. York v. Turpen, 1984 OK 26, 681 P.2d 763
• Hendrick v. Walters, 1993 OK 162, 865 P.2d 1232 (local officers bound by AG opinions)
• Rasure v. Sparks, 1919 OK 231, 183 P. 495 (officials acting under AG opinion shielded from civil liability)
• 1998 OK AG 2 (state subject to Rutgers test; withdrawing 1983 OK AG 292 and 1973 OK AG 327)
• 2024 OK AG 6 (county constitutional duty to fund jail operations)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2024/ag-opinion-24-19.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2024/AG%20Opinion%202024-19%20AGO24-51.pdf

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2024-19

The Honorable Jon Echols
Oklahoma House of Representatives, District 90
2300 N. Lincoln Boulevard, Room 442
Oklahoma City, OK 73105

December 30, 2024

Dear Rep. Echols:

This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:

Does a county have sovereignty in selecting a county jail location on land owned by the county over the objection of a municipality, or does a municipality have the ability, through zoning, to stop the county from constructing a county jail on county-owned land?

I. SUMMARY

Oklahoma County is not a superior sovereign to Oklahoma City. The Oklahoma Supreme Court overruled the superior sovereign rule in 1986 when it decided Indep. Sch. Dist. No. 89 of Oklahoma Cnty. v. City of Oklahoma City, 1986 OK 47, 722 P.2d 1212. In deciding that case, the court adopted the balancing-of-the-interests rule developed by the New Jersey Supreme Court in Rutgers, State University v. Piluso, 60 N.J. 142, 286 A.2d 697 (N.J. Sup. Ct. 1972). In short, the New Jersey court identified five factors (the "Rutgers factors") to weigh in determining whether an entity is immune from a municipal zoning power. Applying the Rutgers factors to this matter, Oklahoma County enjoys immunity from Oklahoma City's zoning power.

II. BACKGROUND

Oklahoma law expressly requires every county to either "have a jail or access to a jail." 57 O.S.2021, § 41. And the sheriff "[has] charge of the county jail of his county . . . ." Id. § 47. Every county also possesses the responsibility for upkeep of the jail and due care of inmates. Id. § 51. Even more, the county's responsibility to adequately fund the operations of the county jail is one of constitutional import. 2024 OK AG 6, ¶ 20.

The facts here are well known. For too long, disrepair, deterioration, and inmate deaths have plagued the Oklahoma County Jail. In response, Oklahoma County Commissioners ("Commissioners") sent a ballot measure to Oklahoma County voters in 2022 to decide whether they would agree to the issuance of $260 million in bonds for the construction of a new county jail. Voters approved the ballot question, with nearly sixty percent voting in favor of the measure. The county eventually purchased property inside the city limits of Oklahoma City, envisioning the site as the future location of the new county jail. Before the County acquired the land, the property's previous owner requested a special use permit on behalf of Oklahoma County. The Oklahoma City Planning Commission recommended approval of the permit, but the City Council of Oklahoma City ("City Council") denied the permit.

The Commissioners subsequently appealed the City Council's decision to the District Court of Oklahoma County on June 18, 2024, arguing that Oklahoma County is the superior sovereign. See Oklahoma County Board of County Commissioners v. The City of Oklahoma City, Case No. CV-2024-1659. Following Oklahoma City's filing of a motion to dismiss, Chief Justice Kane ordered Tulsa County District Judge Doug Drummond to preside over the matter.

The City's denial of the permit and the County's appeal to the district court prompted this request for an official Attorney General Opinion. Due to the time-sensitive nature of your request, this office initially responded on December 12, 2024, through a non-binding letter of counsel. Since then, the City Council effectively ignored the letter of counsel and proceeded to unsuccessful mediation with the County. Accordingly, this office hereby converts the answers previously given to meet the time-sensitive nature of the request in a letter of counsel to a formal opinion under 74 O.S. § 18b(A)(5). Through the issuance of this Opinion, the office deviates from its normal policy of not furnishing an opinion on questions scheduled for a determination by any court of competent jurisdiction. The basis for this deviation concerns the exigent nature of this opinion request, specifically the impending expiration of federal funds dedicated to partially finance the construction of the new detention center.

III. DISCUSSION

In his order denying Oklahoma City's motion to dismiss, Judge Drummond listed the Rutgers factors adopted by the Oklahoma Supreme Court in Indep. Sch. Dist. No. 89 of Oklahoma Cnty. v. City of Oklahoma City, 1986 OK 47, ¶ 12, 722 P.2d 1212, 1216 (applying Rutgers, State University v. Piluso, 60 N.J. 142, 286 A.2d 697, 702-03 (N.J. Sup. Ct. 1972)). Accordingly, determining whether the county has immunity from Oklahoma City's zoning regulations depends on the balancing of the following factors:

(1) The nature and scope of the instrumentality seeking immunity,
(2) The kind of function or land use involved,
(3) The extent of the public interest to be served thereby,
(4) The effect local land use regulation would have upon the enterprise concerned, and
(5) The impact upon legitimate local interests.

City of Oklahoma City, ¶ 12, 722 P.2d at 1216 (citation omitted). Rutgers also observed:

One factor [may] be more influential than another or may be so significant as to completely overshadow all others. No one [factor] . . . is to be thought of as ritualistically required or controlling. And there will undoubtedly be cases . . . where the broader public interest is so important that immunity must be granted even though the local interests may be great . . . . [T]here is no precise formula or set of criteria which will determine every case mechanically and automatically.

City of Oklahoma City, ¶ 12, 722 P.2d at 1216 (citation omitted).

Significantly, the Oklahoma Supreme Court also endorsed Rutgers's assertion that such immunity from municipal zoning regulations is not limitless. City of Oklahoma City, ¶ 13, 722 P.2d at 1216 (Rutgers citation omitted). When exercising such immunity, a political subdivision cannot "arbitrarily override all important legitimate local interests." Id. This balancing-of-the-interests rule "must apply to the state and its instrumentalities [and] . . . to lesser governmental entities entitled to immunity." Id. In response to the City of Oklahoma City case, a previous administration of this office withdrew two former Attorney General Opinions when concluding that the State itself was subject to the balancing-of-the-interests rule. 1998 OK AG 2, ¶ 11 (withdrawing 1983 OK AG 292 and 1973 OK AG 327). Put another way, the State could not assert sovereign superiority against the municipality. As a result, if the State does not get to claim sovereign superiority to end the argument, then neither does Oklahoma County.

On reviewing the Oklahoma Constitution and title 19 of the Oklahoma Statutes, the office could not locate any authority where the Legislature expressly intended to immunize counties from municipal zoning ordinances or place them in a superior position to municipalities. Provided, Oklahoma City, a charter municipality, also possesses no counterargument that its charter gives the city broad zoning authority, effectively making zoning a matter of purely municipal concern. See City of Moore v. Atchison, Topeka, & Santa Fe Ry. Co., 699 F.2d 507 (10th Cir. 1983); Dev. Industries, Inc. v. City of Norman, 1966 OK 59, 412 P.2d 953. Instead, Oklahoma City must adhere its zoning decisions with article 43 of the Oklahoma Municipal Code like non-charter municipalities do.

Reviewing the Rutgers factors outlined above, Oklahoma County enjoys immunity in this matter. First, Oklahoma County and Oklahoma City are merely one hierarchical step apart. And Oklahoma County encompasses most of Oklahoma City. But this factor is not determinative. Second, the function or land use involved will be forced detention. In this matter, the Oklahoma City Planning Department and Commission both recommended approval of the special use permit. Yet, the City Council voted to deny the permit. In essence, prior to denial, city personnel saw no reason to reject the application due to negative effects on public health, safety, and welfare. Third, constructing a new detention center greatly serves the public interest. Voters approved the new facility, which the county must have or provide access to such a facility in another county. 57 O.S.2021, § 41. Conceptually, the new facility will be safer for inmates, jail employees, and visitors, such as state officials present for jail inspections under title 74, section 192 of the Oklahoma Statutes. Even more, numerous lawsuits and failed safety inspections will no longer persist. Almost assuredly, at least, these ongoing burdens on taxpayer resources will be lessened by constructing and maintaining the new facility.

Fourth, the proposed property is currently zoned as heavy industry. This zoning has little bearing on the proposed use of the property for forced detention. Further, to the extent that any issues still exist, Oklahoma County agreed to changes raised in the technical evaluation. Also, Oklahoma County chose a location away from security-sensitive establishments like schools, daycares, and houses of worship. Fifth, any legitimate local interests have seemingly been handled by experts within Oklahoma City's Planning Department and Planning Commission; both recommended approval.

Finally, Oklahoma County's new jail project serves "broader governmental interests" and, therefore, is so important and statutorily mandated, to a degree, that the County has immunity in its determination of the new county jail site. This immunity exists despite vocalized local interests, which this office recognizes. Essentially, there will be concerns or objections raised, founded or unfounded, no matter where Oklahoma County chooses to build the new detention center. To allow concerns and objections to control the conversation would equate to an endless cycle of inaction between Oklahoma City and Oklahoma County.

This does not, however, give Oklahoma County carte blanche discretion to run roughshod in disregard of Oklahoma City's valid and pressing concerns about the proposed jail site. Instead, Oklahoma County ought to consult with Oklahoma City, listen and study local objections, problems, and find suggestions in order to minimize the conflict. 1998 OK AG 2, ¶ 9 (citation omitted). Oklahoma County demonstrated good faith seeking to work with the Oklahoma City by participating in the permitting and zoning process.

In contrast, the City Council responded to the County's efforts dismissively. First, as described above, the City Council flouted its own Planning Department and Commission's recommendation to approve the special permit. This prompted Oklahoma County's current appeal before Judge Drummond. Second, after a failed mediation, the City Council ceased negotiations all together and refuses to respond to Oklahoma County's continued efforts to raze the impasse between itself and the City Council. Though the City Council may believe that it asserts valid, pressing concerns, its action (more appropriately, inaction) smacks of the bad-faith politics of obstruction and obstinance.

It is, therefore, the official Opinion of the Attorney General that:

While Oklahoma County is not a "superior sovereign" to Oklahoma City, applying the Rutgers factors, Oklahoma County enjoys immunity from Oklahoma City's zoning power in this matter as it relates to the site of the new county jail.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

THOMAS R. SCHNEIDER
DEPUTY GENERAL COUNSEL