Empathy List Archives

JW

Joe Weaver

Mon, Oct 24, 2022 6:50 PM

Colleagues:

I represent a small town (statutory town board of trustees form of government). The Town has had difficulty in finding volunteers to serve on various boards required by ordinance and state law. The Town has not had a Planning Commission for some time due to a lack of people willing to serve. The Town now has a Planning Commission (with the power of a zoning commission as provided for by ordinance and state law), however the Town does not have a Board of Adjustment (lack of people willing to serve).

A couple of Trustees inquired whether the five members of the Board of Trustees can also serve as the Board of Adjustment. I have not found anything definitive on this issue, however, I can see at least one problem with the Mayor (ex officio member of Planning Commission) serving on both boards.

Any thoughts or direction on this issue will be appreciated.

Thanks,
Joe
NOTICE:
The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Colleagues: I represent a small town (statutory town board of trustees form of government). The Town has had difficulty in finding volunteers to serve on various boards required by ordinance and state law. The Town has not had a Planning Commission for some time due to a lack of people willing to serve. The Town now has a Planning Commission (with the power of a zoning commission as provided for by ordinance and state law), however the Town does not have a Board of Adjustment (lack of people willing to serve). A couple of Trustees inquired whether the five members of the Board of Trustees can also serve as the Board of Adjustment. I have not found anything definitive on this issue, however, I can see at least one problem with the Mayor (ex officio member of Planning Commission) serving on both boards. Any thoughts or direction on this issue will be appreciated. Thanks, Joe NOTICE: The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system. Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

DM

Daniel McClure

Mon, Oct 24, 2022 7:32 PM

Joe,

The way I read the statute the residency requirement doesn't apply. You could have people out of official limits serve. Also, David Weatherford has takena n interesting regionalized BOA approach. Both options might be helpful. You have to have a BOA to enforce the zoning code.

Daniel

From: Joe Weaver jweaver@basslaw.net
Sent: Monday, October 24, 2022 1:50 PM
To: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: [Oama] Board of Adjustment

Colleagues:

I represent a small town (statutory town board of trustees form of government). The Town has had difficulty in finding volunteers to serve on various boards required by ordinance and state law. The Town has not had a Planning Commission for some time due to a lack of people willing to serve. The Town now has a Planning Commission (with the power of a zoning commission as provided for by ordinance and state law), however the Town does not have a Board of Adjustment (lack of people willing to serve).

A couple of Trustees inquired whether the five members of the Board of Trustees can also serve as the Board of Adjustment. I have not found anything definitive on this issue, however, I can see at least one problem with the Mayor (ex officio member of Planning Commission) serving on both boards.

Any thoughts or direction on this issue will be appreciated.

Thanks,
Joe
NOTICE:
The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Joe, The way I read the statute the residency requirement doesn't apply. You could have people out of official limits serve. Also, David Weatherford has takena n interesting regionalized BOA approach. Both options might be helpful. You have to have a BOA to enforce the zoning code. Daniel From: Joe Weaver <jweaver@basslaw.net> Sent: Monday, October 24, 2022 1:50 PM To: OAMA luistserv (OAMA@lists.imla.org) <oama@lists.imla.org> Subject: [Oama] Board of Adjustment Colleagues: I represent a small town (statutory town board of trustees form of government). The Town has had difficulty in finding volunteers to serve on various boards required by ordinance and state law. The Town has not had a Planning Commission for some time due to a lack of people willing to serve. The Town now has a Planning Commission (with the power of a zoning commission as provided for by ordinance and state law), however the Town does not have a Board of Adjustment (lack of people willing to serve). A couple of Trustees inquired whether the five members of the Board of Trustees can also serve as the Board of Adjustment. I have not found anything definitive on this issue, however, I can see at least one problem with the Mayor (ex officio member of Planning Commission) serving on both boards. Any thoughts or direction on this issue will be appreciated. Thanks, Joe NOTICE: The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system. Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

K

Kim@spadylaw.com

Mon, Oct 24, 2022 7:47 PM

While there might be no conflict in a board of trustees member serving as a
planning commission member, there is a clear conflict in such an officer
serving on the board of adjustment which hears appeals of decisions made by
other municipal officers. Therefore, a member of the board of trustees may
not serve on the board of adjustment. By failing to have a board of
adjustment, Town has failed to comply with statutory prerequisites for
exercising zoning power and is not entitled to an injunction under the
current circumstances in this case.

Town of Wellston v. Wallace, 2007 OK CIV APP 2, ¶ 8, 152 P.3d 284, 286.

This is a problem for the small municipalities I represent, too. . . .

Good luck,

Kim

From: Joe Weaver jweaver@basslaw.net
Sent: Monday, October 24, 2022 1:50 PM
To: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: [Oama] Board of Adjustment

Colleagues:

I represent a small town (statutory town board of trustees form of
government). The Town has had difficulty in finding volunteers to serve on
various boards required by ordinance and state law. The Town has not had a
Planning Commission for some time due to a lack of people willing to serve.
The Town now has a Planning Commission (with the power of a zoning
commission as provided for by ordinance and state law), however the Town
does not have a Board of Adjustment (lack of people willing to serve).

A couple of Trustees inquired whether the five members of the Board of
Trustees can also serve as the Board of Adjustment. I have not found
anything definitive on this issue, however, I can see at least one problem
with the Mayor (ex officio member of Planning Commission) serving on both
boards.

Any thoughts or direction on this issue will be appreciated.

Thanks,

Joe

NOTICE:
The information contained in this transmission is or may be protected by the
attorney-client and/or the attorney work product privilege and is
confidential. It is intended only for the use of the individual or entity
identified above. If the reader of this message is not the intended
recipient you are hereby notified that any dissemination or distribution of
the accompanying communication is prohibited. No applicable privilege is
waived by the party sending this communication. If you have received this
communication in error, please notify us immediately by reply and delete the
original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by
the IRS, we inform you that any U.S. federal tax advice contained in this
communication (including any attachments) is not intended or written to be
used, and cannot be used, for the purpose of (i) avoiding penalties under
the Internal Revenue Code or (ii) promoting, marketing or recommending to
another party any transaction or matter addressed herein.

While there might be no conflict in a board of trustees member serving as a planning commission member, there is a clear conflict in such an officer serving on the board of adjustment which hears appeals of decisions made by other municipal officers. Therefore, a member of the board of trustees may not serve on the board of adjustment. By failing to have a board of adjustment, Town has failed to comply with statutory prerequisites for exercising zoning power and is not entitled to an injunction under the current circumstances in this case. Town of Wellston v. Wallace, 2007 OK CIV APP 2, ¶ 8, 152 P.3d 284, 286. This is a problem for the small municipalities I represent, too. . . . Good luck, Kim From: Joe Weaver <jweaver@basslaw.net> Sent: Monday, October 24, 2022 1:50 PM To: OAMA luistserv (OAMA@lists.imla.org) <oama@lists.imla.org> Subject: [Oama] Board of Adjustment Colleagues: I represent a small town (statutory town board of trustees form of government). The Town has had difficulty in finding volunteers to serve on various boards required by ordinance and state law. The Town has not had a Planning Commission for some time due to a lack of people willing to serve. The Town now has a Planning Commission (with the power of a zoning commission as provided for by ordinance and state law), however the Town does not have a Board of Adjustment (lack of people willing to serve). A couple of Trustees inquired whether the five members of the Board of Trustees can also serve as the Board of Adjustment. I have not found anything definitive on this issue, however, I can see at least one problem with the Mayor (ex officio member of Planning Commission) serving on both boards. Any thoughts or direction on this issue will be appreciated. Thanks, Joe NOTICE: The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system. Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

DM

Daniel McClure

Mon, Oct 24, 2022 8:23 PM

For what it is worth, there will likely be a bill this session on plan acceptances and comp plans. We are close to a deal. If we want to add something in to fix this issue for small towns now would be the time. Happy to chat w anyone interested.

Daniel

From: Kim@spadylaw.com Kim@spadylaw.com
Sent: Monday, October 24, 2022 2:47 PM
To: 'Joe Weaver' jweaver@basslaw.net; 'OAMA luistserv' oama@lists.imla.org
Subject: [Oama] Re: Board of Adjustment

"While there might be no conflict in a board of trustees member serving as a planning commission member, there is a clear conflict in such an officer serving on the board of adjustment which hears appeals of decisions made by other municipal officers. Therefore, a member of the board of trustees may not serve on the board of adjustment. By failing to have a board of adjustment, Town has failed to comply with statutory prerequisites for exercising zoning power and is not entitled to an injunction under the current circumstances in this case."

Town of Wellston v. Wallace, 2007 OK CIV APP 2, ¶ 8, 152 P.3d 284, 286.

This is a problem for the small municipalities I represent, too. . . .

Good luck,
Kim

[cid:image001.jpg@01D8E7BC.7F8685A0]

From: Joe Weaver <jweaver@basslaw.net mailto:jweaver@basslaw.net>
Sent: Monday, October 24, 2022 1:50 PM
To: OAMA luistserv (OAMA@lists.imla.org mailto:OAMA@lists.imla.org) <oama@lists.imla.org mailto:oama@lists.imla.org>
Subject: [Oama] Board of Adjustment

Colleagues:

I represent a small town (statutory town board of trustees form of government). The Town has had difficulty in finding volunteers to serve on various boards required by ordinance and state law. The Town has not had a Planning Commission for some time due to a lack of people willing to serve. The Town now has a Planning Commission (with the power of a zoning commission as provided for by ordinance and state law), however the Town does not have a Board of Adjustment (lack of people willing to serve).

A couple of Trustees inquired whether the five members of the Board of Trustees can also serve as the Board of Adjustment. I have not found anything definitive on this issue, however, I can see at least one problem with the Mayor (ex officio member of Planning Commission) serving on both boards.

Any thoughts or direction on this issue will be appreciated.

Thanks,
Joe
NOTICE:
The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

For what it is worth, there will likely be a bill this session on plan acceptances and comp plans. We are close to a deal. If we want to add something in to fix this issue for small towns now would be the time. Happy to chat w anyone interested. Daniel From: Kim@spadylaw.com <Kim@spadylaw.com> Sent: Monday, October 24, 2022 2:47 PM To: 'Joe Weaver' <jweaver@basslaw.net>; 'OAMA luistserv' <oama@lists.imla.org> Subject: [Oama] Re: Board of Adjustment "While there might be no conflict in a board of trustees member serving as a planning commission member, there is a clear conflict in such an officer serving on the board of adjustment which hears appeals of decisions made by other municipal officers. Therefore, a member of the board of trustees may not serve on the board of adjustment. By failing to have a board of adjustment, Town has failed to comply with statutory prerequisites for exercising zoning power and is not entitled to an injunction under the current circumstances in this case." Town of Wellston v. Wallace, 2007 OK CIV APP 2, ¶ 8, 152 P.3d 284, 286. This is a problem for the small municipalities I represent, too. . . . Good luck, Kim [cid:image001.jpg@01D8E7BC.7F8685A0] From: Joe Weaver <jweaver@basslaw.net<mailto:jweaver@basslaw.net>> Sent: Monday, October 24, 2022 1:50 PM To: OAMA luistserv (OAMA@lists.imla.org<mailto:OAMA@lists.imla.org>) <oama@lists.imla.org<mailto:oama@lists.imla.org>> Subject: [Oama] Board of Adjustment Colleagues: I represent a small town (statutory town board of trustees form of government). The Town has had difficulty in finding volunteers to serve on various boards required by ordinance and state law. The Town has not had a Planning Commission for some time due to a lack of people willing to serve. The Town now has a Planning Commission (with the power of a zoning commission as provided for by ordinance and state law), however the Town does not have a Board of Adjustment (lack of people willing to serve). A couple of Trustees inquired whether the five members of the Board of Trustees can also serve as the Board of Adjustment. I have not found anything definitive on this issue, however, I can see at least one problem with the Mayor (ex officio member of Planning Commission) serving on both boards. Any thoughts or direction on this issue will be appreciated. Thanks, Joe NOTICE: The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system. Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

DW

David Weatherford

Tue, Oct 25, 2022 1:03 PM

Attached is a simple agreement Ive used for Sand Springs to provide BOA
services to Sperry and Mannford; it has worked well since SS has a planning
staff and can process any requests; also, the BOA in SS can truly serve as
an independent board for cases from Mannford and Sperry. In three years,
weve only had 2 cases (one from each of the cities) but the agreement
allows each of the other cities to meet the requirement of having a BOA.

David L. Weatherford

Attorney At Law

1141 East 37th Street

Tulsa, OK 74105

(918) 743-8355

(918) 743-7478 (fax)

From: Daniel McClure daniel@oml.org
Sent: Monday, October 24, 2022 3:23 PM
To: Kim@spadylaw.com; 'Joe Weaver' jweaver@basslaw.net; 'OAMA luistserv'
oama@lists.imla.org
Subject: [Oama] Re: Board of Adjustment

For what it is worth, there will likely be a bill this session on plan
acceptances and comp plans. We are close to a deal. If we want to add
something in to fix this issue for small towns now would be the time. Happy
to chat w anyone interested.

Daniel

From: Kim@spadylaw.com mailto:Kim@spadylaw.com <Kim@spadylaw.com
mailto:Kim@spadylaw.com >
Sent: Monday, October 24, 2022 2:47 PM
To: 'Joe Weaver' <jweaver@basslaw.net mailto:jweaver@basslaw.net >; 'OAMA
luistserv' <oama@lists.imla.org mailto:oama@lists.imla.org >
Subject: [Oama] Re: Board of Adjustment

While there might be no conflict in a board of trustees member serving as a
planning commission member, there is a clear conflict in such an officer
serving on the board of adjustment which hears appeals of decisions made by
other municipal officers. Therefore, a member of the board of trustees may
not serve on the board of adjustment. By failing to have a board of
adjustment, Town has failed to comply with statutory prerequisites for
exercising zoning power and is not entitled to an injunction under the
current circumstances in this case.

Town of Wellston v. Wallace, 2007 OK CIV APP 2, ¶ 8, 152 P.3d 284, 286.

This is a problem for the small municipalities I represent, too. . . .

Good luck,

Kim

From: Joe Weaver <jweaver@basslaw.net mailto:jweaver@basslaw.net >
Sent: Monday, October 24, 2022 1:50 PM
To: OAMA luistserv (OAMA@lists.imla.org mailto:OAMA@lists.imla.org )
<oama@lists.imla.org mailto:oama@lists.imla.org >
Subject: [Oama] Board of Adjustment

Colleagues:

I represent a small town (statutory town board of trustees form of
government). The Town has had difficulty in finding volunteers to serve on
various boards required by ordinance and state law. The Town has not had a
Planning Commission for some time due to a lack of people willing to serve.
The Town now has a Planning Commission (with the power of a zoning
commission as provided for by ordinance and state law), however the Town
does not have a Board of Adjustment (lack of people willing to serve).

A couple of Trustees inquired whether the five members of the Board of
Trustees can also serve as the Board of Adjustment. I have not found
anything definitive on this issue, however, I can see at least one problem
with the Mayor (ex officio member of Planning Commission) serving on both
boards.

Any thoughts or direction on this issue will be appreciated.

Thanks,

Joe

NOTICE:
The information contained in this transmission is or may be protected by the
attorney-client and/or the attorney work product privilege and is
confidential. It is intended only for the use of the individual or entity
identified above. If the reader of this message is not the intended
recipient you are hereby notified that any dissemination or distribution of
the accompanying communication is prohibited. No applicable privilege is
waived by the party sending this communication. If you have received this
communication in error, please notify us immediately by reply and delete the
original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by
the IRS, we inform you that any U.S. federal tax advice contained in this
communication (including any attachments) is not intended or written to be
used, and cannot be used, for the purpose of (i) avoiding penalties under
the Internal Revenue Code or (ii) promoting, marketing or recommending to
another party any transaction or matter addressed herein.

Attached is a simple agreement Ive used for Sand Springs to provide BOA services to Sperry and Mannford; it has worked well since SS has a planning staff and can process any requests; also, the BOA in SS can truly serve as an independent board for cases from Mannford and Sperry. In three years, weve only had 2 cases (one from each of the cities) but the agreement allows each of the other cities to meet the requirement of having a BOA. David L. Weatherford Attorney At Law 1141 East 37th Street Tulsa, OK 74105 (918) 743-8355 (918) 743-7478 (fax) From: Daniel McClure <daniel@oml.org> Sent: Monday, October 24, 2022 3:23 PM To: Kim@spadylaw.com; 'Joe Weaver' <jweaver@basslaw.net>; 'OAMA luistserv' <oama@lists.imla.org> Subject: [Oama] Re: Board of Adjustment For what it is worth, there will likely be a bill this session on plan acceptances and comp plans. We are close to a deal. If we want to add something in to fix this issue for small towns now would be the time. Happy to chat w anyone interested. Daniel From: Kim@spadylaw.com <mailto:Kim@spadylaw.com> <Kim@spadylaw.com <mailto:Kim@spadylaw.com> > Sent: Monday, October 24, 2022 2:47 PM To: 'Joe Weaver' <jweaver@basslaw.net <mailto:jweaver@basslaw.net> >; 'OAMA luistserv' <oama@lists.imla.org <mailto:oama@lists.imla.org> > Subject: [Oama] Re: Board of Adjustment While there might be no conflict in a board of trustees member serving as a planning commission member, there is a clear conflict in such an officer serving on the board of adjustment which hears appeals of decisions made by other municipal officers. Therefore, a member of the board of trustees may not serve on the board of adjustment. By failing to have a board of adjustment, Town has failed to comply with statutory prerequisites for exercising zoning power and is not entitled to an injunction under the current circumstances in this case. Town of Wellston v. Wallace, 2007 OK CIV APP 2, ¶ 8, 152 P.3d 284, 286. This is a problem for the small municipalities I represent, too. . . . Good luck, Kim From: Joe Weaver <jweaver@basslaw.net <mailto:jweaver@basslaw.net> > Sent: Monday, October 24, 2022 1:50 PM To: OAMA luistserv (OAMA@lists.imla.org <mailto:OAMA@lists.imla.org> ) <oama@lists.imla.org <mailto:oama@lists.imla.org> > Subject: [Oama] Board of Adjustment Colleagues: I represent a small town (statutory town board of trustees form of government). The Town has had difficulty in finding volunteers to serve on various boards required by ordinance and state law. The Town has not had a Planning Commission for some time due to a lack of people willing to serve. The Town now has a Planning Commission (with the power of a zoning commission as provided for by ordinance and state law), however the Town does not have a Board of Adjustment (lack of people willing to serve). A couple of Trustees inquired whether the five members of the Board of Trustees can also serve as the Board of Adjustment. I have not found anything definitive on this issue, however, I can see at least one problem with the Mayor (ex officio member of Planning Commission) serving on both boards. Any thoughts or direction on this issue will be appreciated. Thanks, Joe NOTICE: The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system. Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.