DON NUCHOLLS AND LEE RHODES, D/B/ A ZODIAC REAL ESTATE COMPANY, APPELLEES,
v.
BOARD OF ADJUSTMENT OF THE CITY OF TULSA, OKLAHOMA, AND CITY OF TULSA, OKLAHOMA, A MUNICIPAL CORPORATION, APPELLANTS.

Appeal from the District Court of Tulsa County; Ronald Ricketts, Judge.

�0 Appellant appeals from declaratory judgment of district court determining that a portion of a city ordinance was unconstitutional and entering an injunction restraining appellant from enforcing the ordinance which prohibited the Board of Adjustment from granting a principal use variance.

AFFIRMED.

Louis Levy, Tom W. Tannehill, Tulsa, for appellees.

Waldo F. Bales, City Atty. by David L. Pauling, Russell R. Linker, II, Asst. City Attys., Tulsa, for appellants.

Epperson, Goodpaster & Johnsen by Roy D. Johnsen, Tulsa, for amicus curiae Municipal League of Oklahoma and Oklahoma Section of The American Institute of Planners.

Jacqueline S. Wright, Norman, for amicus curiae Oklahoma Association of Municipal Attys.

HODGES, Vice Chief Justice.

[560 P.2d 557]

�1 The question presented is the validity of a portion of the Tulsa, Okla.Rev.Ord., Title 42, Ch. 14, � 1470.1 (1969)

�2 Don Nucholls and Lee Rhodes, d/b/a Zodiac Real Estate Company, appellees, sought a variance authorizing the operation of a real estate office in a zoning district established exclusively for residential purposes. The Tulsa Board of Adjustment (Board) unanimously ruled it did not have jurisdiction under the ordinance to grant a principal use variance. Appellees appealed to the district court pursuant to the procedure delineated by 11 O.S. 1971 � 401 . Appellees also requested a declaratory judgment determining the constitutionality of a [560 P.2d 558] portion of the ordinance and an injunction against the Board and City of Tulsa (appellants) restraining them from enforcing the ordinance. The appeal from the Board of Adjustment was dismissed, but the district court granted appellees' motion for summary judgment on its petition for declaratory judgment. The court determined that a portion of � 1470.1 was unconstitutional, void, of no force and effect, and restrained and enjoined the Board of Adjustment of the City of Tulsa from enforcing the ordinance.

�3 Appellants assert the provisions of the Oklahoma statutes, 11 O.S. 1971 �� 401 -410 deny Boards of Adjustment jurisdiction to grant principal use variances, and that 11 O.S. 1971 � 410

�4 The Oklahoma statutes require the appointment of Boards of Adjustment and such boards are empowered to exercise jurisdiction in three general areas pursuant to 11 O.S. 1971 � 407 : building inspector appeals, permits for special exceptions, and to authorize variances.

�5 The salient question for our determination is whether the city ordinance prohibiting the granting of a principal use variance controls over the state statute empowering Boards of Adjustment to grant variances because of the language contained in 11 O.S. 1971 � 410 :

�6 Appellants argue that 11 O.S. 1971 � 410 precludes granting of variances in Tulsa because the ordinance is more restrictive than the statute. The statute is subject to interpretation under the rule of "ejusdem generis." This statutory [560 P.2d 559] construction provides where general words follow particular words, the general words will be considered as applicable only to things of the same general character, kind, nature or class enumerated, and cannot include wholly different things.

�7 We believe that the imposition of higher standards by city ordinance is restricted to greater width or size of yards, courts or other open spaces, height of buildings or number of stories, percentage of lot to be left unoccupied or similar matters of construction. The statute is not applicable to "use," rather it speaks to actual construction.

�8 It is provided by 11 O.S. 1971 � 401 :

Had it been the intent of the Legislature to permit restriction by city ordinance of "use," 11 O.S. 1971 � 410 could have been amplified to include matters enumerated in 11 O.S. 1971 � 401 . After consideration of the Oklahoma Zoning Act we do not believe it was the legislative intent to permit cities by ordinance to restrict and disempower Boards of Adjustment rights to grant principal use variances under proper circumstances, that the pertinent portion of Tulsa, Okla.Rev.Ord., Title 42, Ch. 14, � 1470.1 (1969) is invalid because it is in conflict with the statute, 11 O.S. 1971 � 407 .

�9 This court has recognized the authority of Boards of Adjustment to permit principal use variances,

�10 A variance is a right granted by a Board of Adjustment pursuant to power vested by statute or ordinance and is a form of administrative relief from the literal import and strict application of zoning regulations. A variance extends authorization to the owner to use his property in a manner forbidden by the zoning enactment; it presupposes the reasonableness of zoning regulations as a whole, and relaxes the general rules of the ordinance to alleviate conditions peculiar to particular property. A variance permits a use to which the property is adapted and avoids an undue invasion [560 P.2d 560] of the right of private property by compelling conformance to unsuitable permissible use thereby causing a burden on individual landowners that is disproportionate to common need.

�11 The right, power, and authority of the legislative body of cities to enact zoning ordinances arises from the authority of the Oklahoma Statutes.

�12 AFFIRMED.

�13 WILLIAMS, C.J., and DAVISON, IRWIN, BERRY, LAVENDER, SIMMS and DOOLIN, JJ., concur.

�14 BARNES, J., dissents.