specially concurring:
Although I agree with both the result and rationale of the Majority Opinion, I believe the Court should have addressed the threshold question raised in the Amicus Curiae Brief, regarding the power of a municipality to enact flood plain zoning under our present statutory scheme. The argument made was that the City, in enacting flood plain zoning in any form, acted beyond its statutory authority, and therefore acted unconstitutionally.
The issue thus raised was whether, under the power granted it by law, a municipal corporation can enact flood plain zoning. This question is of such great importance that I believe the Court should have addressed it in order to apprise cities that they do in fact have such powers.
In In re Gribben, 5 Okl. 379, 47 P. 1074 (1897), and Mitchener v. City Com’rs of City of Okmulgee, 100 Okl. 98, 228 P. 159 (1924), this State adopted and adhered to what is commonly called “Dillon’s Rule”, which provides that municipal corporations possess, and can exercise, the following powers, and no others:
1. Those granted in express words;
2. Those necessary or fairly implied in, or incident to, the powers expressly granted;
3. Those essential to the declared objectives and purposes of the corporation, not simply convenient, but indispensable.
*1259More recently, in Development Industries, Inc. v. City of Norman, Okl., 412 P.2d 953 (1966), we included among those powers those “incidental to the powers expressly granted.” The question before the Court that I believe we should answer is, does a municipal corporation, by virtue of the general Oklahoma zoning statutes, under Dillon’s Rule, as amended, have the authority to zone for the purposes of flood plain protection.
At 11 O.S.Supp.1977, § 43-101, municipalities are empowered to regulate and restrict the use of land in order to promote the health, safety, morals, or general welfare of the community. Granting those powers, the statute provides:
“For the purpose of promoting health, safety, morals, or the general welfare of the community, a municipal governing body may regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence, or other purposes.”
I believe that the above quoted language is ample authority for municipal flood plain zoning, as the very purpose of flood plain zoning is to promote the health, safety, and general welfare of the community. These purposes are both laudable and encompassed within the statute. In addition, municipalities, in establishing flood plain zoning, are doing nothing more than regulating and restricting the density of population in such areas, the use of buildings and land in such area, the size of buildings and other structures in the area, and the percentage of lots that may be occupied — all of which are authorized under the above quoted statute.
Thus, both the purposes for flood plain zoning, and the means to accomplish such purposes, are encompassed within the general statutory zoning authorities of municipalities. The general rule developed by case law in this jurisdiction is that zoning ordinances and particular provisions thereof will not be declared unconstitutional unless they are clearly arbitrary, capricious, or discriminatory, or without a reasonable or substantial relationship to public health, safety, morals, or general welfare. As I believe there is a substantial relationship between flood plain zoning and the general welfare, health, and safety of a community, I see no grounds for holding flood plain zoning unconstitutional.
Additionally, I would point out that Section 43-103 of Title 11 O.S.Supp.1977, provides that:
“Municipal regulations as to buildings, structures and land shall be made in accordance with a comprehensive plan and be designed to accomplish any of the following objectives:
“1. . . .
“2. To secure safety from fire, panic and other dangers;
“3. To promote health and the general welfare”. [Emphasis added]
One of the prime motivations of flood plain zoning is the protection of life and property from the dangers of flooding. The above quoted statute provides that a comprehensive plan for land usage may be enacted to accomplish safety from fire, panic and other dangers. Clearly, the dangers of flooding would be included within the phrase, “and other dangers”. This being the case, I believe that this provision supplies additional authority for flood plain zoning by municipalities.
For the above stated reasons, I would have addressed the constitutional question and held that municipalities are indeed authorized to enact flood plain zoning in order to promote the health, safety, and general welfare of the community. To hold otherwise would be to deny the fact that flooding constitutes a threat to both the health and safety of a community.