Why a Board of Adjustment? Its Role & Authority

Why a Board of Adjustment? Its Role & Authority By Rita F. Douglas-Talley Assistant Municipal Counselor The City of Oklahoma City Why a Board of Adjustment? The City of Oklahoma established its Board of Adjustment in 1947, on the recommendation of the Chairman of The City s Planning Commission. 1 Pursuant to the current ordinance, the Board now sits to ascertain all pertinent facts and set forth its findings and interpretation by formal resolution in the event an ambiguity arises concerning the content of the Planning and Zoning Code. 2 The State of Oklahoma requires any municipality exercising zoning powers to establish a Board of Adjustment, 3 perhaps to bridge any perceived gap between what zoning regulations require and a citizen s ability to comply with those regulations. In some cities, a Board of Adjustment is created to act as a safety valve in cases of hardship imposed on individuals by the Zoning Ordinance, considering that if it were possible for the City Council to write a perfect zoning ordinance which would meet the needs of its citizens, while at the same time avoiding hardship in individual cases, there would be no need for this board. However, since it is impossible to write a zoning ordinance that will work perfectly, the Board of Adjustment is an essential part of the zoning enforcement mechanism. 4 1 Historic document from the City Clerk of The City of Oklahoma City, Memo and ordinance excerpt dated September 27, 1947, attached hereto as Exhibit A. 2 Section 1200.7, Article I, of Chapter 59 of the Oklahoma City Municipal Code, 2010, attached hereto as Exhibit B. 3 11 O.S. 44-101, which requires a municipality exercising zoning powers, pursuant to 11 O.S. 43-101 to provide by ordinance for the appointment of a Board of Adjustment. 11 O.S. 43-101 grants municipalities certain general powers for the purpose of promoting health, safety, morals or the general welfare of the community, to 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. 4 City of High Point, North Carolina, Department of Planning and Development, www.highpointnc.gov/plan/boafunctions.cfm 1

The City of Philadelphia empowered a Board of Adjustment to hear and decide upon appeals from the public for exceptions to zoning ordinance provisions and to authorize variances if not contrary to the public interest. 5 The City of Southlake, Texas, created a Board of Adjustment for a number of reasons, including: to act as an escape valve for the consideration of individual site requests for relief from the literal interpretation and enforcement of the Zoning Ordinance. The Southlake Board determines if the administrative official has created an error in the interpretation and enforcement of the Zoning Ordinance, and has the authority to grant relief to the literal enforcement of provisions of the Zoning Ordinance on a case-by-case basis provided that the board finds that the variance will be in harmony with the general purpose and intent of the zoning ordinance, will not be injurious to the neighborhood or detrimental to the public welfare, and if the applicant can demonstrate that special conditions and circumstances exist which make the land, structure or building unique from others in the same district; that literal interpretation of the Zoning Ordinance would deprive the applicant of rights commonly enjoyed by others in the same district; and that special conditions and circumstances do not result from the actions of the applicant. The hardship cannot be self-created and relief will only be allowed upon a finding that granting of the variance will not confer on the applicant any special privilege that is denied by the ordinance to others in the same district. 6 5 City of Philadelphia, Pennsylvania, Department of Records, Zoning Board of Adjustment, www.phila.gov/phils/docs/inventor/graphics/agencies/a166.htm. 6 City of Southlake, Texas, Board of Adjustment, www.cityofsouthlake.com/index.aspx?nid=265. 2

Finally, in Muscatine, Iowa, the purpose of the Board of Adjustment is to hear and decide appeals involving an alleged error in any order, requirement, decision or determination made by an administrative official in the enforcement and interpretation of the zoning ordinance and to hear and decide special exceptions to the zoning ordinance. 7 The specific role and authority of a Board of Adjustment in Oklahoma is set forth in 11 O.S. 44-101 et seq., most particularly in 44-104 8, which describes the powers of a board of adjustment. The statutes are clear regarding what action a Board of Adjustment can take. 9 But why a Board of Adjustment? Why not some other municipal or judicial review body? 7 City of Muscatine, Iowa, Board of Adjustment, www.muscatineiowa.gov.index.aspx?nid=102. 8 11 O.S. 44-104 states that the Board of Adjustment shall have the power to: 1. 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; 2. 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; 3. authorize in specific cases 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 not to be contrary to the public interest if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done; provided, however, the board shall have no power to authorize variances as to use except as provided by paragraph 4 of this section; 4. hear and decide oil and/or gas applications or appeals unless prohibited throughout a municipality by municipal ordinance. The board of adjustment shall be required to make the findings prescribed by Section 44-107 of this title in order to grant a variance as to use with respect to any such application or appeal. Exceptions and/or variances may be allowed by the board of adjustment only after notice and hearing as provided in Section 44-108 of this title. 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 11 O.S. 1988 44-105 reads as follows: A. When exercising the powers provided for in Section 44-104 of this title, the board of adjustment, in conformity with the provisions of the ordinance, may reverse or affirm, in whole or in part, or modify the order, requirement, decision, or determination from which appealed and may make such order, requirement, decision, or determination as ought to be made. 3

One reason may be that a Board of Adjustment provides a relatively inexpensive forum, and a method by which work on historic properties can be monitored and reviewed. For instance, neighbors in historic Mesta Park in Oklahoma City disagreed because one performed work to the exterior of a home without a required Certificate of Appropriateness from the Historic Preservation Commission. 10 An aggrieved neighbor and his wife appeared before the Board of Adjustment to provide input on what action would be acceptable and in keeping with historic requirements. The homeowner, represented by legal counsel, agreed to the requirements, which also included completion of the roof and exterior veneer within six months; quarterly, in person, progress reports to the Historic Preservation Commission; cleaning and keeping clean the exterior of the property, and no additional unauthorized construction on the house. The role of the Board of Adjustment in this instance was as the quasi-judicial body to which an appeal presents from a decision of a municipal board or commission. 11 From time to time, a municipal board of adjustment serves as a place keeper. In another appeal from action taken by the Oklahoma City Historic Preservation Commission, a party was facing a citation in municipal court because he installed vinyl framed windows throughout his entire home. His zoning district, Shepherd Historic District, prohibits vinyl-clad wood windows or entirely vinyl framed windows, deeming them inappropriate for historic districts. After being B. The concurring vote of at least three members of the board of adjustment shall be necessary to reverse any order, requirement, decision, or determination being appealed from, to decide in favor of the applicant, or to decide any matter which may properly come before it pursuant to the zoning ordinance and Section 44-104 of this title. 10 In Re Bert & Mary Bowman, Before the Board of Adjustment of The City of Oklahoma City, Oklahoma, BOA Case No. 13244. Order Sustaining Appeal of Historic Preservation Commission Case No. HPCA-10 009. See also 17 th Street Investments, LLC v. Oklahoma City Board of Adjustment, Oklahoma County District Court Case No. CJ-2008-3916, wherein the property owners installed thermal pane windows rather than the required single pane wooden windows, and were denied a Certificate of Appropriateness by the Oklahoma City Historic Preservation Commission. The Board of Adjustment denied the appeal, and that denial was sustained on appeal. 11 Section 4250.4K, Article IV of Chapter 59 of the Oklahoma City Municipal Code, 2010, lists Appeals as a power of the Board of Adjustment, specifically, to hear and make final decisions on appeals where any person aggrieved by any decision of staff or the Historic Preservation Commission in granting or denying a Certificate of Appropriateness may appeal said decision to the Board of Adjustment.... 4

denied Historic Preservation Commission approval to retain the vinyl framed windows, he appealed to the Oklahoma City Board of Adjustment. Pending the appeal before that body, no action was taken on his municipal citation, and he would be able to use the time to consider other actions regarding his windows in order to come into compliance. A municipal board of adjustment can also provide relief from recommendations from a municipal planning commission to a city council for zoning changes that happen to affect a private business in a manner not anticipated or intended by that commission or council. In Oklahoma City, in 1982, an entity now known as Plaza Event Center, Inc., was given a special exception to a then-new zoning ordinance that prohibited the sale of alcohol within 300 feet of a residentially-zoned and used area. 12 In the 1982 case, the Board of Adjustment granted a Special Exception, which allowed the entity to continue its use, including the sale of alcohol. A condition of the Special Exception was that the use would never cease for more than six months, or it would no longer exist. The property owners argued before the Board of Adjustment, the Oklahoma County District Court on appeal, and now to the Oklahoma Court of Civil Appeals that the lapse in licensing was - among other reasons - because of various changes in management. The City argued that the area has changed, and that allowing the sale of alcoholic beverages at that location is no longer appropriate. At its best use, a special exception allows independent, individual review of an ordinance and its specific applicability to an ongoing use to determine if that use should be allowed to continue. 13 The 1982 Board of Adjustment 12 Plaza Event Center, Inc., a corporation and Charles A. Shadid, LLC, a Limited Liability Company v. Oklahoma City Board of Adjustment, Case No. CJ-2012-3718, is now on appeal to the Oklahoma Court of Civil Appeals. 13 See also Chapter 59, Section 1200.4 which states: Previously Granted Special Exceptions, Special Uses, Variances and Planned Unit Developments. All special exceptions, special uses, variances and planned unit developments granted prior to the effective date of this chapter shall remain in full force and effect. The recipient of the special exception, special use, variance or planned unit development may proceed to develop the property in accordance with the approved plans and any conditions attached thereto. However, if the recipient has failed to act on the 5

determined that in the Plaza Event Center case, a special exception was warranted. The 2012 Board of Adjustment determined that a special exception was no longer appropriate because of changes in the zoned area. The Oklahoma statutes describe the specific authority related to special exceptions 14 as follows: The municipal governing body may authorize the board of adjustment to make special exceptions to specific uses allowed within each zoning category according to the zoning ordinance in appropriate cases and subject to appropriate conditions and safeguards in harmony with its general purpose and intent and only in accordance with general or specific provisions contained in the zoning ordinance. (Emphasis added). A recent example of this specific review authority in Oklahoma City involves a proposed ordinance related to what has been referred to as urban chickens. A resident seeking to raise up to six hens in Oklahoma City would pay $25 to first make application to the Oklahoma City Board of Adjustment for a Special Exception use. 15 This use is proposed to be allowed after review by the board of adjustment at a public hearing, notice of which would be mailed to all property owners within 300 feet of the applicant s property. Citizens would be allowed to offer comments about the application to the Board of Adjustment, either in writing or by attending the public meeting. Under the proposed ordinance, the Board of Adjustment would assure that certain required conditions have been met. In this instance, the approval of the Special Exception would expire by default if the use was not established within 12 months of its approval, or is discontinued or abandoned for a period of 12 months. Here, if the ordinance is approved, the special exception, special use, variance or planned unit development before approval expires, the provisions of this chapter shall govern. 14 11 O.S. 1988 44-106. 15 An Ordinance related to urban chickens was considered by the Oklahoma City Council on April 29, 2014. If approved, the ordinance would require review by the Oklahoma City Board of Adjustment of applications to raise chickens in specified areas. Copies of the memo to the Mayor and Council describing the ordinance, as well as the proposed ordinance are attached hereto as Exhibits C and D. Table 6100.1: Agricultural and Residential Districts Use Regulations, is deleted for the sake of brevity. 6

role of the board of adjustment will be quasi-judicial, as it weighs facts presented to determine whether the ability of an applicant to have chickens in a residential area is outweighed by the desire of other residents to keep the residential area chicken-free. Individuals also often seek relief before a municipal Board of Adjustment on a case-bycase basis, not related to a special exception reviewed because of conditions listed in an ordinance. A resident of Gatewood Urban Conservation District sought a variance to the City s Planning and Zoning Code to allow installation of a 17-foot wide driveway for the front yard of his house, which would be five (5) feet wider than the 12 feet allowed. The Board of Adjustment considered whether the applicant met each of the statutory standards necessary for the grant of a variance and determined that he had not. 16 That case was appealed to the Oklahoma County District Court. 17 The Oklahoma City Board of Adjustment often reviews cases involving adult children who seek a variance to allow the construction of a trailer on less than the required acreage so that an ailing parent can live close to them. 18 Presentation of this kind of application to the board of adjustment seldom involves an attorney or other hired representative, has a relatively low application fee 19 and allows the imposition of conditions, such as expiration of the special exception after three years. 16 11 O.S. 1988 44-107, establishes the standards for the grant of a variance: 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 may be granted, in whole, in part or upon reasonable conditions as provided in this article, only upon a finding by the board of adjustment that: 1. The application of the ordinance to the particular piece of property would create an unnecessary hardship; 2. Such conditions are peculiar to the particular piece of property involved; 3. Relief, if granted, would not cause substantial detriment to the public good, or impair the purposes and intent of the ordinance or the comprehensive plan; and 4. The variance if granted, would be the minimum necessary to alleviate the unnecessary hardship. 17 Dinh Nguyen v. Oklahoma City Board of Adjustment, Oklahoma County District Court Case No. CJ-2007-6897. That appeal was denied. 18 Oklahoma City Board of Adjustment Case No. 13867, involving a request for variance due to medical hardship, was heard March 20, 2014, and unanimously approved for a three-year period. The mobile home for an elderly mother was being replaced after being destroyed by a tornado. 19 Oklahoma City has established various fees for matters to be reviewed before its Board of Adjustment. These fees range from $750.00 (seven hundred and fifty dollars) to appeal an administrative decision, to $1,200.00 (one 7

A municipal board of adjustment also has specific responsibilities, as may be established by a municipal zoning and planning code. In Oklahoma City, pursuant to ordinance the Board of Adjustment was empowered to assure that no residential structure in a residential zoning district was physically altered in such a way that would have a negative impact on adjacent residential uses. Any paving, signs and structural remodeling is to maintain physical compatibility with the surrounding area. 20 In this case, where the applicant proposed an adult day care center to be operated from her residence, if the Board of Adjustment so found, it could have granted a special exception to the zoning requirements, as set forth by statute. 21 The applicant in this instance appealed the denial of her request to the Oklahoma County District Court. 22 So what can a municipal board of adjustment be authorized to do? It is generally recognized that the functions, powers and duties of boards of adjustment or review or like bodies may be established and defined by zoning statutes, but ordinarily they are governed in particulars by zoning ordinances. They are governed by the principle and policy as well as by specific and necessarily implied provisions of enabling statutes and zoning ordinances consistent with such statutes. The power of such a board where granted by statute is, of course, not dependent on an ordinance, nor subject to limitation, alteration or extension by ordinance. Furthermore, the powers of such a board may be affected by charter provisions implemented by ordinances. They include: (1) power to authorize, deny or, in a few instances, recommend for or against variances, nonconforming uses and permits; (2) power to review the action of administrative and ministerial thousand, two hundred dollars) for consideration of a special exception or variance. Applications for a variance due to a medical hardship which requires the construction of a mobile home are $300.00 (three hundred dollars). Fees for all Oklahoma City Board of Adjustment matters are fully set forth in 60-59-17, Article VII, Chapter 60. 20 Section 9350.3, Article IX, of Chapter 59 of the Oklahoma City Municipal Code, 2007, as amended. 21 11 O.S. 1988 44-106 states The municipal governing body may authorize the board of adjustment to make special exceptions to specific uses allowed within each zoning category according to the zoning ordinance in appropriate cases and subject to appropriate conditions and safeguards in harmony with its general purpose and intent and only in accordance with general or specific provisions contained in the zoning ordinance. 22 Mazolla Finney v. Oklahoma City Board of Adjustment, Oklahoma County District Court Case CJ-2008-2683. The appeal was dismissed by the Court. 8

officers in granting or denying permits or taking certain steps in the enforcement of zoning; and (3) procedural powers, viz., to entertain applications, give or require notice to interested parties, conduct hearings, deliberate, and decide on the record and evidence before them. Usually these boards have no legislative or zoning power, although in a few instances under an established rule or standard they can modify use district boundaries. Ordinarily, moreover, they cannot pass upon the constitutionality or validity of the zoning and building ordinances under which they act. They must take them as they are and seek to apply them in the light of existing judicial interpretation. Unless authorized by statute, ordinance or a municipality's planning code, zoning hearing boards generally have no authority to render a purely advisory opinion. A zoning board of adjustment has the inherent authority to reconsider denial of intervenors' request for rehearing on landowners' application for variances. The powers of boards of adjustment or zoning review are discretionary, administrative, fact-finding and quasi-judicial, but not legislative or strictly judicial. Boards of adjustment and similar agencies in their normal authority and functioning are not invested with arbitrary power. Their power and discretion are broad, but not for this reason invalid as an unlawful delegation of legislative responsibility, provided they are subject to an established standard or rule to guide them in the exercise of their broad and discretionary powers. The powers of such a board must be exercised within the established standards and guidelines. Any ambiguity as to the extent of the board's power should be resolved against the existence of unqualified power. It is not ordinarily true that the governing body of a municipality can do by resolution whatever a board of adjustment is authorized to do, since statutes often authorize functions to be performed by these boards that are not within charter or statutory powers of municipal legislative bodies. Zoning boards of adjustment or review may be authorized to apply both zoning 9

ordinances and building codes or ordinances, although under some laws such a board may have power to apply only zoning and not building or other ordinances. Why a Board of Adjustment? To allow citizens easy access and prompt review by a panel empowered by the municipal governing body to review, assess and determine questions related to its Planning and Zoning Code in a forum that is quasi-judicial in the sense that it can render a decision that is the municipality s final word on the request, yet informal enough that citizens can present their own arguments without legal representation regarding what is perceived as ambiguities in the rules under which they are bound. What is the Role and Authority of a municipal board of adjustment? To follow those processes as outlined first generally in the Oklahoma Statutes, then specifically in the municipal ordinances, and to allow for easy citizen access to zoning and other administrative relief as that body determines to be appropriate. 10