Tulsa City Councilor Jim Mautino has proposed allowing Board of Adjustment (BoA) cases to be appealed to the City Council. As it stands, once the BoA acts, the decision can only be appealed to District Court. Councilor Mautino's concern is that this situation puts justice beyond the reach of many who are hurt by a BoA decision, and that having the City Council hear an initial appeal would allow grievances to be handled at a lower cost in time and money.
The response from the Cockroach Caucus has been fascinating to watch, and, as always, the Tulsa Whirled editorial page leads the way, proclaiming that Mautino's proposal is a solution in search of a problem. It's a typically arrogant response -- if we don't have a problem, the problem doesn't exist -- but more about that later. Here's some background to help you understand what this is all about.
The BoA gets involved when a property owner's plans or actions run afoul of the City of Tulsa's zoning code. For example: An owner applies for a building permit and is told that his proposed new structure or addition doesn't comply with setbacks from the street or height limits for the land's zoning classification. A business owner applies for a certificate of occupancy -- changing the use of an existing building -- and is denied because the proposed new use isn't permitted by the zoning for the site. A property owner is cited by Neighborhood Inspections (formerly known as Code Enforcement) for a violation of the zoning code.
The Board of Adjustment is a five-member body (appointed by the Mayor, confirmed by the Council) that meets twice a month to hear these cases. (Here is the section of the ordinance that defines the BoA and its powers.) The BoA is described as "quasi-judicial" because they are to interpret the zoning code, but not to rewrite it. The BoA can grant "variances" -- authorizing technical violations of the code if a "hardship" exists. The hardship is supposed to be something peculiar about the lay of the land -- not a self-imposed or economic hardship. The zoning code cannot reasonably anticipate every circumstance that may arise, so the BoA's power to grant variances provides a relief valve against absurdities.
The BoA also has the power to grant "special exceptions." The zoning code spells out what uses are permitted by right in each zoning classification. It also spells out additional uses for each classification that require getting a special exception. Some uses are allowed anywhere in the city, but only with a special exception -- e.g., homeless centers, heliports, nursing homes, cemeteries, bus stations, convict pre-release centers, sewage disposal facilities. Other uses are allowed by special exception only in certain zones.
The applicant for a variance or a special exception must notify neighbors and the public, and the BoA conducts a public hearing, which gives anyone a chance to argue against (or for) the application.
In my observation, variances are often granted on the slightest pretext of a hardship. I once watched the BoA grant a variance allowing a homeowner to build an enormous storage building, larger than the ordinance allowed for a residential area, on his lot. The hardship cited was that it was a very large lot. If the ordinance is unreasonable it should be changed; the BoA shouldn't nullify it by refusing to enforce it. At one time, the BoA could grant "use variances" -- allowing property owners to use their land in ways that the zoning code prohibits. The right way to deal with such a situation is to seek a zoning change through the Planning Commission and the City Council. Use variance was a way to bypass the process, and abuse was so rampant that the state legislature banned the practice.
In granting special exceptions, the BoA steps well beyond any quasi-judicial interpretation of the law and is exercising considerable discretion. The Board must decide whether granting the exception is in harmony with the zoning code and they must consider the impact on the neighborhood and the general welfare of the city. They can add restrictions and special conditions. They can even require the posting of a bond to ensure that the conditions are fulfilled.
As it stands today, if a neighboring property owner believes that the BoA has overstepped its bounds on variances, or has misused its discretion on special exceptions, the only remedy is district court.
There are pros and cons to Mautino's proposal. There would need to be some safeguards -- a frivolous or malicious appeal would add to the cost of a building project for a homeowner and small business, and it might mean that a project doesn't happen, to the detriment of our economy. But there are problems with the current situation that need to be addressed, in order to protect our property values. We should be looking at who sits on the BoA. We should review the discretion the zoning code gives to the BoA in special exception cases and ask if in some cases that discretion should be withdrawn or be made subject to City Council review.
The root problem may be with our zoning code itself: Does it work well as a means of land use regulation? Does it protect property values and encourage quality development? Or is there a better way?
