Agenda - Planning Commission - 02/02/2017

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Zoning Bulletin December 25, 2016 I Volume 10 I Issue 24 Adjustment, 2016 OK 113, 2016 WL 6462378 (Okla. 2016) OKLAHOMA (11/01/16) This case addressed the issue of whether a county board of adjustment possessed the authority to grant condi- tional use permits, and whether a conditional use permit should have been granted to operate an energy facility run on wind turbines. The Background/Facts: Mustang Run Wind Project, LLC ("Mus- tang") sought to construct 68 electricity -producing wind turbines on 150 acres of land. Mustang applied to the Osage County Board of Adjustment (the "Board") for a conditional use permit ("CUP") for the proposed project. Ultimately, without explanation, the Board denied Mustang's application. Mustang appealed. (The Osage Nation moved to intervene in the case, and that motion was granted.) A trial judge found for Mustang. The judge ordered the Board to is- sue a CUP to Mustang. The Board and the Osage Nation appealed. On appeal, they argued that because the Legislature had not specifically, through any of the five "county zoning and enabling acts," empowered a county board of adjustment the authority to grant a special use permit, that the Board here "had no power or authority to approve a condition use permit." They also argued that the Board had authority to deny an application for a CUP —even when it satisfied applicable zoning ordinances, such as the County's Wind Energy Ordinance —based on concerns for the "general welfare" of citizens. DECISION: Judgment of district court affirmed. The Supreme Court of Oklahoma first held that the Board possessed the authority, under Oklahoma's City -County Planning and Zoning Act, to grant CUPs to owners of real property located in Osage County (the "County"), including Mustang. The court found that the City - County Planning and Zoning Act (19 Okla. Stat. § 866.23), which governs appeals to county board of adjustments, authorizes such boards to hear and decide requests for decisions on questions upon which they are authorized to pass by regulations adopted by the board. And, the court found that the County Planning and Zoning ordinances adopted by the County Board of County Commissioners authorized the Board to grant conditional use permits. The court also rejected the Board's argument that its authority to consider the "general welfare" of citizens was sufficiently broad so as to give the Board discretion to deny Mustang's CUP even though Mustang had satisfied the requirements of all relevant County zoning ordinances. The court noted that neither the Board, nor Osage Nation had "pointed to any statutory authority that a board of adjustment pos- sesses legislative power to rewrite a zoning ordinance approved by its © 2016 Thomson Reuters 3