A. Generally. The Board of Adjustment shall location have the following powers:
1. Administrative review. To hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of Chapter 122. In reaching its decision, the board shall establish firm guidelines for future administrative actions on like matters.
2. Special exceptions. To hear and decide special exceptions to Chapter 122 to allow a use, or a specifically designated element associated with a use, which is not permitted by right in a particular district because of potential adverse effect, but which, if controlled in the particular instance as to its relationship to the neighborhood and to the general welfare, may be permitted by the Board of Adjustment, where specifically authorized by Chapter 122, and in accordance with the substantive and procedural standards of Chapter 122. In reaching its decision, the board shall not grant the application if it finds:
a. That the use is not specifically permitted under the regulations;
b. That the location of proposed activity and improvements are not clearly defined on the site plan filed by the applicant; or
c. That the exception will not be wholly compatible with the use and permitted development of adjacent properties.
(1) Special exception application. An application for a special exception to use or develop property as specifically authorized in the district use regulations or in this section may be filed by any person owning the affected property or by any tenant upon written authorization of the owner. Such application shall be filed with the board and a copy thereof with the enforcing officer.
(2) Form of appeal or application. Such application shall show the location and intended use of the site, the names of all the property owners and existing land uses within three hundred (300) feet, and any other material pertinent to the request which the Board of Adjustment may require.
(3) Public hearing. The Board of Adjustment shall hold one (1) or more public hearings thereon in accordance with the requirements for notice and hearings.
Any appeal or application may be withdrawn upon written notice to the enforcing officer but no appeal shall be withdrawn after posting of hearing notice and prior to board action thereon without formal consent of the board.
Exceptions to uses may be authorized. The City Council may authorize the Board of Adjustment to make special exceptions to specific uses allowed within each zoning category according to Chapter 122. In appropriate cases and subject to appropriate conditions and safeguards in harmony with its general purpose and intent and only in accordance with general or specific provisions contained in Chapter 122.
3. Variances. 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 Chapter 122 when such cases are shown not to be contrary to the public interest if, owing to special conditions, a literal enforcement of the provisions of Chapter 122 will result in unnecessary hardship and so that the spirit of such chapter shall be observed and substantial justice done. Such variances may be granted in whole, in part, or upon reasonable conditions only upon a finding by the Board of Adjustment that:
a. The application of this chapter to this particular piece of property would create an unnecessary hardship, not self-imposed by the owner or developer;
b. Such conditions are peculiar only to the particular piece of property involved; or
c. Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of Chapter 122 or the comprehensive plan; provided, however, that no variance may be granted for a use of land or buildings or structures that is prohibited by this chapter; and
d. The variance, if granted, would be the minimum necessary to alleviate the unnecessary hardship;
Provided, however, the board shall have no power to authorize variances as to use except as provided by subsection (A)(4) of this section;
4. Oil and gas applications. To hear and decide oil and/or gas applications or appeals unless prohibited throughout the City by City ordinance. The Board of Adjustment shall be required to make the findings prescribed by 11 O.S. § 44-107 in order to grant a variance as to use with respect to any such application or appeal.
B. Extent of relief. In exercising the abovementioned powers, the Board of Adjustment, in conformity with the provisions of 11 O.S. § 44-105, and the provisions of this chapter, may reverse or affirm, wholly or partly, or 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. Every decision of the board shall be based upon findings of fact and every finding of fact shall be supported in the record of proceedings. The enumerated conditions required to exist on any matter upon which the board is authorized to pass under these regulations shall be construed as limitations on the power of the board to act. Nothing herein contained shall be construed to empower the board to change the terms of these regulations or to effect changes in the zoning districts. The powers of the board shall be so applied that the terms of these regulations will be strictly enforced.
1. Three votes required. The concurring vote of at least three (3) members of the Board of Adjustment shall be necessary to reverse any order, requirement, and decision or determination being appealed from, to decide in favor of the applicant, or to decide any matter which may properly come before it under this chapter or State law.
a. A member shall disqualify himself from voting whenever he has a personal or monetary interest in the property under appeal or will be directly affected by the decision of the board; and
b. A member may disqualify himself from voting whenever any applicant, or his agent, has sought to influence the member's vote on the appeal, other than in the public hearing;
2. Approval of request.
a. In approving any request, the board may designate such conditions in connection therewith in order to secure substantially the objectives of the regulation or provision to which such variance is granted to provide adequately for the maintenance of the integrity and character of the zone in which such permit is granted;
b. When necessary, the board may require guarantees, in such form as it deems proper, to ensure that conditions designated in connection therewith are being or will be complied with. Where any condition under which a request has been granted appears to have been violated, the board may hold a public hearing thereon to determine whether or not the permit theretofore granted shall be terminated; and
c. Upon approval of an application for special exception or of a variance appeal, the applicant shall apply for occupancy or construction permits within sixty (60) days after the board's decision unless a greater time is requested in the application and is authorized by the board. Any approval may be granted one (1) emergency extension of sixty (60) days on written request filed with the board before expiration of the original approval. Failure of the applicant to apply for occupancy or construction permits within the authorized time period shall void the right to secure such permits except upon the filing of a new application or appeal.
3. Denial of request. No appeal or application that has been denied shall be further considered by the board under a subsequent request obtained by filing new plans and obtaining of a new decision from the enforcing officer unless:
a. The new plans materially change the nature of the request; or
b. The permitted development of other nearby property in the same zone has been substantially altered or changed by a ruling of the board so as to support an allegation of changed conditions.
C. Hearing, findings, and record. Exceptions and/or variances may be allowed by the Board of Adjustment only after notice and hearing as provided in 11 O.S. § 44-108. 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 such variance or special exception shall be voidable on appeal to the district court.
(Code 1991, § 12-125)
State Law reference- Similar provisions, 11 O.S. § 44-104.