Mustang Run Wind Project, LLC v. Osage Cnty. Bd. of Adjustment

• Decision Date: 01 November 2016
• Docket Number: Case Number: 113463
• Parties: Mustang Run Wind Project, LLC, Plaintiff/Appellee v. Osage County Board of Adjustment, Defendant/Appellant, v. The Osage Nation, Counter–Appellant.
• Court: Oklahoma Supreme Court

387 P.3d 333

2016 OK 113

Mustang Run Wind Project, LLC, Plaintiff/Appellee

v.Osage County Board of Adjustment, Defendant/Appellant,

v.The Osage Nation, Counter–Appellant.

Case Number: 113463

Supreme Court of Oklahoma.

Decided: November 1, 2016

Joel L. Wohlgemuth and Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa, Oklahoma, for Plaintiff/Appellee Mustang Run Wind Project LLC.

R. Tom Hillis, Assistant District Attorney of Osage County, Pawhuska, Oklahoma, for Defendant/Appellant Osage County Board of Adjustment.

John W. Moody, Tulsa, Oklahoma for Counter Appellant, Osage Nation.

EDMONDSON, J.

¶ 1 Mustang Run Wind Project, LLC, (Mustang) filed an application with the Osage County Board of Adjustment for a conditional use permit involving between 9,406 and 9,453 acres of land. Mustang proposed to use the land for placing sixty-eight wind turbines on less than 150 acres and generating electricity.¹ Public meetings on the proposed wind energy facility were held in April and May 2014. The proposed facility is close to another "wind farm" which had obtained a permit three years previously. Mustang's application included land zoned for agricultural use and was then being used for agriculture and ranching. The County Board of Adjustment denied the application.

¶ 2 Mustang filed an appeal in the District Court for Osage County. The Osage Nation and Osage Minerals Council filed a motion to intervene in the District Court proceeding. The motion to intervene was granted and they filed a trial brief.

¶ 3 At a trial de novo counsel for the parties presented argument and relied upon evidence submitted to the County Board of Adjustment. The trial judge's five-page order found for Mustang and ordered the Board of Adjustment to issue a conditional use permit to Mustang. Osage County Board of Adjustment and Osage Nation filed an appeal to this Court and we retained the appeal.

I.

¶ 4 Osage Nation argues the Osage County Board of Adjustment "had no power or authority to approve a conditional use permit" because such power was not given by the Legislature to counties. The Osage Nation invokes language of unauthorized legislative power exercised by a county board of adjustment in providing a special use permit and this district court's review of the board's decision on a request for such a permit. Osage Nation identifies five "county zoning and enabling acts" of the Legislature and argues that none of these statutory schemes allows a county board of adjustment to grant a special use permit.²

¶ 5 The Osage Nation's argument centers on both 19 O.S. 2011 865.63 and 866.23. Osage Nation argues 866.23 gives a county board of adjustment "only three powers," to (1) decide an appeal where an error of law has occurred, (2) decide requests for map interpretations or decisions on other special questions, and (3) authorize a variance from zoning that would cause a hardship based upon the shape or topography of property.

Appeals to the County Board of Adjustment may be taken by any person aggrieved or by a public officer, department, board or bureau affected by any decision of the County Inspecting Officer in administering the county zoning regulations or building line and setback regulations. Such appeals shall be taken within a period of not more than ten (10) days, by filing written notice with the County Board of Adjustment and the County Inspecting Officer, stating the grounds thereof. An appeal from the County Board of Adjustment shall stay all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken shall certify to the Board of Adjustment that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. The County Board of Adjustment shall have the following powers and it shall be its duty:

1. To hear and decide appeals where it is alleged that there is error of law in any order, requirement, decision or determination made by the County Inspecting Officer in the enforcement of the county zoning regulations.

2. To hear and decide requests for map interpretations or for decisions on other special questions upon which it is authorized to pass by the regulations adopted by the Board.

3. Where, by reason of exceptional narrowness, shallowness, shape, topography or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of any regulation adopted under this act would result in peculiar and exceptional difficulties to, or exceptional and demonstrable undue hardship upon, the owner of such property, to authorize, upon an appeal relating to such property, a variance from such strict application so as to relieve such demonstrable difficulties or hardships, provided such relief can be granted without substantially impairing the intent, purpose, and integrity of the zone plan or other element of the comprehensive plan as embodied in the zoning regulations and map.

In exercising the above powers, such Board of Adjustment may, in conformity with the provisions of this act, reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.

In acting upon any appeal, such Board of Adjustment shall, in its consideration of and decision thereon, apply the principles, standards and objectives set forth and contained in all applicable regulations, ordinances and resolutions and in the comprehensive plan.

19 O.S.2011 866.23.

Section 866.23 is part of the City–County Planning and Zoning Act, 19 O.S. 2011 866.1 –866.35. The language in 865.63 is part of the County Planning and Zoning Act, 19 O.S.2011 865.51 –865.69. The language in 865.63 of the County Planning and Zoning Act is not identical to the language in 866.23 referencing a City–County Planning and Zoning Commission.³ Because the materials presented in the appellate record appear to show the existence of a cooperative municipal and county planning commission, i.e. , "Pawhuska–Osage County Planning Area Commission" which regulates zoning in all of Osage County including incorporated areas, and our conclusion 866.23 provides authority for conditional use permits, we need not examine 865.63.

¶ 6 The Osage Nation points to three statutes relating to municipal boards of adjustment, two allowing "special exceptions"(11 O.S. 44–104 and 44–106 ) and one a "specific use permit" (11 O.S. 43–113 ); and argues that "if the Legislature intended for counties to have the power to grant a specific or conditional use permit, it would have amended the City–County Planning and Zoning Act in 2003 when it amended the Oklahoma Municipal Code to grant the power to the governing body of a municipality to approve specific use permits."

¶ 7 The language in 866.23 relied on by the Osage Nation also appears in 19 O.S.2011 863.21. This language has appeared continuously in county zoning statutes since the various forms of comprehensive county zoning legislation were enacted in 1949.⁴ The argument of the Osage Nation is each and every county adjustment board does not have, and has never had , the authority to grant a special or conditional use permit. In other words, the Osage Nation claims that no owner of real property in Osage County may obtain any type of conditional use permit from a county board of adjustment.

¶ 8 Osage Nation also concludes this lack of authority to issue a conditional use permit by a county board of adjustment also strips such authority from a District Court to approve a conditional use permit in a statutorily authorized review of the board's decision in a District Court trial de novo .⁵ We disagree.

¶ 9 A zoning variance and a special permit granted by a local government entity are historic procedures designed to (1) act as a safety valve when applying a zoning regulation to "prevent governmental restrictions from operating in such a manner that the burden on an individual landowner amounts to a taking," and (2) adjust application of ordinances impacting upon an owner's proposed use of property unforeseen when ordinances were created.⁶ Flexibility in land-use regulation has been provided in many states by procedures for granting (1) area variances, a deviation from strict compliance with physical standards such as setbacks, lot size and frontage, (2) use variances, which allow use prohibited by zoning regulations, and (3) special use permits (or conditional use permits) where the use of the property is conditionally allowed by ordinance.⁷ Historically, some states distinguished a zoning "board of adjustment" which could grant area/use variances and special permits and a zoning "board of appeal" which typically heard appeals from zoning administrators.⁸ Section 866.23 appears to combine the functions of the historic board of appeal which heard appeals from a zoning official and a board of adjustment which adjusted the application of zoning ordinances for a particular situation. It authorizes a board of adjustment: "1. To hear and decide appeals ... [and] 2. To hear and decide requests ... for decisions on other special questions upon which it is authorized to pass by the regulations adopted by the Board."

¶ 10 The Pawhuska–Osage County Planning and Zoning ordinances adopted by the Osage County Board of County Commissioners (1) state they are adopted pursuant to 11 O.S. 101–109 (Chapter 43), & 19 O.S. 866.1 –866.36 (Ordinance 1.1), (2) establish areas allowing conditional use permits (Ordinance 1.7.1), (3) create a Board of Adjustment (Ordinance 6.1) and (4) authorize the Board of Adjustment to grant conditional use permits (Ordinance 6.5.2). A board of adjustment authorized by Pawhuska–Osage County Planning and Zoning ordinances to hear an application of a special use permit is within the board's statutory authority to hear and decide...