May 9, 2014 Nancy S. McNayr, AICP McNayr Paque, LLC

1. Oklahoma Municipal LeaguePlanning Commissioner Workshop Practical Advice on Variances, Special Exceptions, Administrative Appeals May 9, 2014 Nancy S. McNayr, AICP McNayr Paque, LLC

2. Oklahoma Statutes Constitutional Limits: The Oklahoma Legislature enacted legislation in 1923 which established the scope, procedures, and limitations for planning for cities, towns, and counties. This includes the establishment and duties of the Board of Adjustment or Board of Appeals. This grant of authority is set forth in: Oklahoma Statutes Title 11 - Cities & Towns Oklahoma Statutes Title 19 - Counties

3. Legislative vs Judicial In Oklahoma, it is recognized that the concept of zoning is legislative and that the role of the judiciary in reviewing determinations by the board of adjustment is limited to determining whether or not they were arbitrary and unreasonable. Cities over 200,000 §11-44-104. City & County Board of Adjustment: §19-863. §19-865 - §19-868 Municipal Codes

4. Zoning Ordinance The Board of Adjustment typically has the following powers: Appeals for Administrative Error, Map Interpretations, Special Exceptions, Variances from Terms, Standards, & Criteria, Building Lines and Setbacks, Oil and/or Gas Applications, Reconstruction of Nonconformities.

5. BOA Powers The board of adjustment shall have the power to determine: Administrative Error Hear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance. Map Interpretations To interpret the provisions of the zoning map where physical features existing on the ground vary from those shown on the Official Zoning Districts Map. To permit the extension of district regulations where a district boundary line divides a lot of record in single ownership.

6. BOA Powers Special Exception Hear and decide special exceptions to the zoning ordinance to allow a use, or a specifically designated element associated with a use, which is not permitted by right in a particular district because of potential adverse effect, but which if controlled in the particular instance as to its relationship to the neighborhood and to the general welfare, may be permitted by the board of adjustment, - where specifically authorized by the zoning ordinance, - and in accordance with the substantive and procedural standards of the zoning ordinance and in harmony with its general purpose and intent. Special Exceptions must authorized in the Municipal Code.

7. BOA Powers Variance from Terms, Standards, Criteria Authorize a variance from the terms, standards, and criteria that pertain to an allowed use category within a zoning district as authorized by the zoning ordinance when such cases are shown: such conditions are peculiar to the particular piece of property involved, literal enforcement of the provisions of the ordinance will result in unnecessary hardship, not to be contrary to the public interest, the spirit of the ordinance shall be observed, not impair the intent of the comprehensive plan, substantial justice done, the variance, if granted, would be the minimum necessary to alleviate the unnecessary hardship. provided, however, the board shall have no power to authorize variances as to use (except as provided by paragraph 4 of this section).

8. BOA Powers Oil and/or Gas Applications (Section 4) Hear and decide oil and/or gas applications or appeals unless prohibited by municipal ordinance. The board of adjustment shall be required to make the findings in order to grant a variance as to use. The record of the meeting at which the variance or special exception was granted shall show that each element of a variance or special exception was established at the public hearing on the question, otherwise said variance or special exception shall be voidable on appeal to the district court.

9. BOA Powers Building Line Adjustment If there is a board of zoning adjustment such board shall be appointed to serve as the board of adjustment for the building or setback line regulations. In order that unwarranted hardships may be avoided (an unreasonable deprivation as distinguished from the mere grant of a privilege), the intended purpose of the regulations being strictly observed and the public welfare and public safety protected, a board of adjustment may modify or vary the regulations.

10. BOA Powers • Reconstruction of Nonconformities • To permit the reconstruction of a nonconforming building: • destroyed by fire or natural causes, • partially destroyed, by more than 60 percent by fire or natural causes, • where the Board shall find some compelling public necessity requiring reconstruction of the nonconforming building.

11. §11-44-104. Powers. Extent of Relief. The board of adjustment may reverse or affirm, in whole or in part, or modify the order, requirement, decision, or determination from which appealed.

12. Appeal from BOA An appeal from order of the board of adjustment may be taken to the district court in the county in which the property under appeal is located. Appeal may be made by any person or persons, jointly or severally aggrieved, or any taxpayer or any officer, department, board or bureau of the municipality. The appeal shall be heard and tried de novo in the district court. All issues in any proceedings under this section shall have preference over all other civil actions and proceedings.

13. Appeal from BOA An appeal to the district court from the board of adjustment stays all proceedings in furtherance of the action, unless the chairman of the board certifies to the court clerk, that by reason of facts a stay would cause imminent peril to life or property. If this occurs, a stayed only authorized only by a restraining order granted by the district court. The district court may reverse or affirm, wholly or partly, or modify the decision brought up for review. Costs shall not be allowed against the board of adjustment unless it shall appear to the district court that the board acted with gross negligence or in bad faith or with malice in making the decision appealed from.

14. Summary Standards A board of adjustment must apply the standards that are already in the zoning ordinance. The Board does not have unlimited discretion. BOA cases are not the appropriate place to make policy; rather the board is applying previously set policies to an individual case. The standards can be general (i.e., the activity does not have a significant adverse effect on neighboring property values and the activity be compatible with the surrounding neighborhood).

15. Summary Burden of Proof The burden of proof is allocated as follows: The applicant must present evidence that the standards in the ordinance are met. It is not the staff’s responsibility to produce this basic information. If the applicant presents sufficient evidence that the standards are met, the applicant is legally entitled to a permit. If contradictory evidence is presented, the board must make findings and then apply the standards.

16. Summary Conditions Individual conditions may be applied to quasi-judicial zoning decisions (but not to legislative zoning) except for PUD’s decisions. These conditions are fully enforceable. A board may only impose conditions related to the standards that are already in the ordinance.

17. Summary Appeals of Quasi-judicial Decisions Quasi-judicial zoning decisions can only be appealed to district court (not to the governing body). Court review is de novo or from the beginning, essentially, the case is reheard.