Variances to zoning ordinances
11 O.S., Sec. 44-104, paragraph 3 states “The board of adjustment shall have the power to: 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 provision of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be 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;”
11 O.S., Sec. 44-104, paragraph 4 states: “hear and decide oil and/or oil and/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 by 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.”
But, Section 44-107 states: “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 of the comprehensive plan; and 4. The variance, if granted, would be the minimum necessary to alleviate the unnecessary hardship.”
Consideration of Section 44-104 seems to contemplate incorporate both the conclusions that must be shown AND the finding(s), while consideration of Section 44-107 is limited to the finding(s).
How do I reconcile the conclusions that must be shown as set forth in Section 44-104 to the finding(s) set forth in Section 44-107? They aren’t necessarily in conflict but appear to reflect different standards for the same thing: a variance. Cases cited in Section 44-104 case notes turn only on the Section 44-104 conclusions that must be shown; cases cited in Section 44-107 case notes turn only on the finding(s) listed in Section 44-107.
What am I missing?
Steven Holloway
hipshot.steven@gmail.com
Perhaps 44-107 is the specific regulation (for oil and gas use variances) that controls over the general variance standard set forth in 44-104, so you need not apply both for oil/gas matters, but based the findings upon the more specific standard applicable to only those matters. Because the specific should control the general in statutory interpretation, a slight inconsistency would not result in conflict if read that way here.
Beth Muckala
Assistant City Attorney
From: Oama oama-bounces@lists.imla.org On Behalf Of Steven Holloway
Sent: Monday, December 14, 2020 3:35 PM
To: Oklahoma Muncipal Attorneys oama oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] Variances to zoning ordinances
11 O.S., Sec. 44-104, paragraph 3 states “The board of adjustment shall have the power to: 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 provision of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be 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;”
11 O.S., Sec. 44-104, paragraph 4 states: “hear and decide oil and/or oil and/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 by 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.”
But, Section 44-107 states: “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 of the comprehensive plan; and 4. The variance, if granted, would be the minimum necessary to alleviate the unnecessary hardship.”
Consideration of Section 44-104 seems to contemplate incorporate both the conclusions that must be shown AND the finding(s), while consideration of Section 44-107 is limited to the finding(s).
How do I reconcile the conclusions that must be shown as set forth in Section 44-104 to the finding(s) set forth in Section 44-107? They aren’t necessarily in conflict but appear to reflect different standards for the same thing: a variance. Cases cited in Section 44-104 case notes turn only on the Section 44-104 conclusions that must be shown; cases cited in Section 44-107 case notes turn only on the finding(s) listed in Section 44-107.
What am I missing?
Steven Holloway
hipshot.steven@gmail.commailto:hipshot.steven@gmail.com