The Oklahoma Bar Journal November 2022

“Land use restrictions aim to prevent problems caused by the ‘pig in the parlor instead of in the barnyard.’” 50 Decisions of the board cannot be arbitrary or unreasonable and must be based upon the evidence submitted and fixed premises. 51 In evaluating conditional use permits, the deci sion of the Board of Adjustment is not legislative but quasi-judicial based upon facts presented. 52 Planning and zoning are critically important to the orderly development of all communities. In summary, planning commissions, boards of adjustment and govern ing bodies must carefully consider the relevant facts and the standards very generally discussed in this article and ensure compliance with state statutes and notice require ments. Following these standards will help ensure the due process rights of applicants and facilitate development that is in the best interests of the health, safety and welfare of the community. CONCLUSION

of an allowed use category within a zoning district authorized by the zoning code may be granted only upon a finding that: 1) Application of the ordinance to the particular piece of property would create an unnecessary hardship; 2) Such conditions are pecu liar to the particular piece of property involved; 3) Relief, if granted, would not

ENDNOTES 1. Standard State Zoning Enabling Act and Standard City Planning Enabling Act. 2. Id. 3. Id. 4. Id. 5. 11 O.S. §43-101. 6. Town of Wellston v. Wallace, 2007 OK CIV APP 2, ¶7. 7. Town of Wellston v. Wallace, 2007 OK CIV APP 2, ¶7, citing Vinson v. Medley, 1987 OK 41. 13. Mid-Continent Life Ins. Col, 1985 OK 41, ¶9. 14. City of Tulsa v. Mobley, 1969 OK 85, ¶7. 15. Id. 16. Id. 17. McNair v. City of Oklahoma City , 1971 OK 134. 18. Id at ¶12. 19. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). 20. Id. 21. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). 22. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992). 23. Id. 24. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). 25. Id. 26. Id. 27. Id. 28. Lynch v. City of Oklahoma City, 1981 OK CIV APP 11. 29. Id at ¶5. 30. Id. 8. 11 O.S. §43-109. 9. 11 O.S. §45-102. 10. Id. 11. Id. 12. Id.

cause substantial detriment to the public good or impair the purposes and intent of the ordinance or the com prehensive plan; and

4) The variance, if granted, would be the minimum necessary to alleviate the unnecessary hardship. 43

Appealing decisions from the Board of Adjustment is different than review of other types of municipal decisions because the time limits for appeal are set by ordinance rather than state stat ute. 44 Additionally, notice of appeal must be filed with both the munic ipal clerk and the clerk of the Board of Adjustment and set out the grounds for the appeal. 45 Upon receipt of the notice of appeal, the board must file all records per taining to the record to the district court clerk. 46 The matter is then tried de novo by the court. 47 One of the more recent cases on appeals from a Board of Adjustment is Mustang Run Wind Project, LLC v. Osage County Board of Adjustment. 48 Although this case involved an appeal from the decision of a county Board of Adjustment to deny a request for a conditional use permit, 49 the reasoning of the court is no less instructive. Citing the United States Supreme Court in City of Edmonds v. Oxford House, Inc., the Mustang Run Wind court noted,

31. Id at ¶3. 32. Id at ¶2. 33. Id at ¶3. 34. Id.

35. Id at ¶11. 36. Id at ¶19. 37. Id at ¶18. 38. Id at ¶15. 39. 11 O.S. §44-101. 42. 11 O.S. §44-101. 43. 11 O.S. §44-107. 44. 11 O.S. §44-110(B). 45. Id. 40. Id. 41. Id.

ABOUT THE AUTHOR

Beth Anne Childs represents the Oklahoma municipalities of Bristow, Wynona and Luther and is the city prosecutor for

46. 11 O.S. §44-110(C). 47. 11 O.S. §44-110(D). 48. 2016 OK 113. 49. Id at ¶0. 50. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732, (1995), quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365,388 (1926). 51. 2016 OK 113, ¶30. 52. Id.

the cities of Owasso and Coweta. She has represented numerous other municipalities and serves on the Board of Directors for the International Municipal Lawyers Association and the Oklahoma Association of Municipal Attorneys.

14 | NOVEMBER 2022

THE OKLAHOMA BAR JOURNAL