MANNFORD SPECIFIC USE PERMITS October 8 2018 SPECIFIC
MANNFORD SPECIFIC USE PERMITS October 8, 2018
SPECIFIC USE PERMITS WHAT ARE THEY AND WHY DO WE USE THEM? In 2003, the state enacted a specific use permit statute to address more intensive land uses under 11 Okl. Stat. Ann. §§ 43 -113 through 43 -115. The clear and legitimate public purpose, as expressed in section 43 -113(B), was that specific use permits are for uses that “more intensely dominate the area in which they are to be located or their effects on the general public are broader in scope than other types of uses which are permitted in a zoning district. ”
SPECIFIC USE PERMITS THE REAL IMPACT OF THEM: Intense uses that previously may have been allowed by going through a Board of Adjustment process, with de novo (new) review by a Court, now can go through a Planning Commission and City Council process that has a different standard of review on appeal, meaning a Court will more likely uphold your decision.
THE STATUTES Section 43 -113 - Title 11. Cities and Towns A. As used in this act, "specific use permit" means a permit granted by a municipal governing body, after notice and a hearing and preliminary review and recommendation of a municipal planning commission, for a specific use within any zoning district. Municipalities may enact an ordinance provision for specific use permit. Any municipality enacting an ordinance providing for specific use permits shall enumerate a list of uses which it has determined more intensely dominate the area in which they are to be located or their effects on the general public are broader in scope than other types of uses which are permitted in a zoning district. An entity with a use which is enumerated on the list may, by application for a specific use permit, locate in a zoning district for which such use would not normally be allowed or could be allowed, but due to its potential impact on surrounding properties, must secure a specific use permit. B. The types of uses for which a specific use permit may be required shall be those types of uses which, because of the size of the land they require or the specialized nature of the use, may more intensely dominate the area in which they are located and their effects on the general public are broader in scope than other uses permitted in the district.
THE STATUTES Section 43 -113 - Title 11. Cities and Towns C. The designation of a specific use as possible on the specific use list shall not constitute an authorization or an assurance that such use will be permitted. Rather, each specific use permit application shall be viewed as to its probable effect on the adjacent properties and community welfare and may be approved or denied as the findings indicate appropriate. D. In granting a specific use permit, the governing body of the municipality may require conditions related to the use of land, including, but not limited to, permitted uses, lot sizes, setback, height limits, required facilities, buffers, open space areas, lighting, signage, landscaping, parking and loading, compatibility, land use density, bonding, insurance and such other development standards and operational conditions and safeguards as are indicated to be important to the welfare and protection of adjacent property and the community as a whole. This may include having the property platted and/or the requirement of the dedication of sufficient right-of-way or easement as necessary to further the public good. Such conditions shall be determined in accordance with the regulations specified in the zoning ordinance. The conditions need not be uniform with regard to each type of land use if equitable procedures recognizing due process principles and avoiding arbitrary decisions have been followed in making regulatory decisions.
THE STATUTES Section 43 -113 - Title 11. Cities and Towns E. The specific use permit regulations established by a municipality shall specify the following: 1. The body which shall review and approve specific use permit requests and amend the same; 2. The conditions which create specific use permit eligibility, the persons and agencies involved in the review process, if any, and the requirements and standards upon which applications will be reviewed and approval granted; and 3. The procedures required for application, review and approval.
THE STATUTES Section 43 -113 - Title 11. Cities and Towns F. Following receipt of a request for a specific use permit, at least one public hearing shall be held. An ordinance may provide for one or more preapplication conferences before submission of a request, the submission of a deposit necessary for payment of application and permit expenses, and the submission of preliminary site plans before the public hearing. Notification of the public hearing shall be given by mail in the same manner as required by Section 43 -106 of Title 11 of the Oklahoma Statutes for public hearings on proposed zoning changes. Within a reasonable time following the public hearing, the body responsible for approving a specific use permit shall deny the request, approve the request, or approve the request with the following conditions: 1. The planning commission shall conduct a public hearing and make recommendations on the specific use permit request which shall be transmitted to the municipal governing body for consideration in making a final decision. If an amendment of a zoning ordinance is required by the specific use permit regulations of a municipal zoning ordinance, the requirements for amendment of a zoning ordinance shall be followed; and 2. If the specific use permit regulations of a municipal zoning ordinance do not require amendment of the ordinance with review and approval of specific use permits, the municipal governing body may approve, approve with conditions, or deny a request. G. In establishing specific use permit ordinances, the municipal governing body may incorporate by reference other available and applicable ordinances or statutes which regulate land development.
THE STATUTES Section 43 -114 - Title 11. Cities and Towns A. If a municipal zoning ordinance authorizes the consideration and approval of a specific use permit pursuant to the provisions of this act, the regulations and standards upon which those decisions are made shall be specified in the ordinance. The standards shall be consistent with, and promote the intent and purpose of the comprehensive plan and/or ordinances, and promote the land use or activity so as to be compatible with adjacent uses of land, the natural environment, and the planned capacities of public services and facilities affected by the land use. The standards shall also ensure that the land use or activity is consistent with the public health, safety, and welfare of the municipality.
THE STATUTES Section 43 -114 - Title 11. Cities and Towns B. Reasonable conditions may be required in conjunction with the approval of a specific use permit. Conditions imposed shall meet the following requirements: 1. Be designed to take into consideration natural environment, the health, safety, and welfare of the residents and landowners immediately adjacent to the proposed land use or activity, and the community as a whole; 2. Be related to the valid exercise of the police power, and to the proposed use or activity; 3. Be necessary to meet the intent and purpose of the zoning requirements; 4. Be related to the standards established in the ordinance for the land use or activity under consideration; and 5. Be necessary to ensure compliance with those standards. C. The conditions imposed with respect to the approval of a specific use permit shall be stated in the record of the approval actions, and shall not be changed or amended except as authorized by the zoning ordinance with notice as specified thereby. The approving body shall maintain a record of conditions which are changed.
WHAT USES ARE COVERED? Each city gets to decide, so long as it is a use that “will more intensely dominate an area. ” The Mannford list includes: Adult Entertainment Establishments Airport - Heliport Bus Station Cemetery Convict Pre-Release Center Crematory Governmental Services Juvenile Delinquency Center Detention Center Juvenile-Adult Mining and Mineral Processing Mausoleum Post Office Rifle and Skeet Range Gun Club Sanitary Landfill Sewer Disposal Facility Halfway House Commercial Theme Parks Refuse Transfer Station Recycling Center Golf Course Golf Driving Range Kennel Mini-Storage Fire Protection Facility Fire Station Churches College or University Hospital Library Nursing Homes Convalescent Homes Public Schools Trade Schools Museum Bed and Breakfast Inn Water Treatment Facility and/or Water Storage Facility Private Schools with comprehensive education curriculum Offices use when located on a 40 -acre or larger tract Industrial Uses requiring a minimum acreage requirement of 40 acres Commercial Resort Facilities (Minimum acreage requirement of 40 acres) Electric Generation Plant &/or Sub-Station Transmitting Tower (excluding amateur radio tower) Marijuana Storage Facilities Wholesale Marijuana Facilities Commercial Marijuana Growth Facilities Apartments Units of 9 units or more Public or Private Attractions Cultural or Heritage Centers
PROCESS For any use on the list, anyone who wants to open such a facility should be told they will need to: (1) Submit a request that will be placed on a Planning Commission agenda. (2) The Planning Commission can impose “reasonable conditions” on the usage if those conditions reduce the impact on adjoining property, city infrastructure or the community as a whole. (3) Obtain a recommendation from the Planning Commission. (4) Obtain final approval from the Town Board;
PROCESS 1. Full and complete hearing process with the Planning Commission, with all evidence presented, including any expert reports. 2. Appeal process to the City Council; in Mannford, the appeal is on the record, without a new evidentiary phase, with the authority of the council to either uphold, reject or modify the recommendation. - our process was not intended as a “new” public hearing, but instead as an appeal - with the quarry, there were no new witnesses but instead written arguments from the Attorney for the applicant only - once you reopen the process at a council meeting, you may need to reopen the entire process! 3. If no appeal, summarily included on a consent agenda for approval. 4. Appeal right exist for any party, including citizens who may not agree with the PC. 5. Although you may not always agree with the PC, their decision should be given some weight.
COURT CONFIRMATION OF THE PROCESS Sand Springs Materials, LLC v. City of Sand Springs, 2010 OK CIV APP 128, 243 P. 3 d 768
THE STANDARD OF REVIEW The district court exercises original jurisdiction in reviewing such cases to determine whether zoning ordinances or the application thereof is arbitrary, capricious, or unreasonable. City of Sand Springs v. Colliver, 1967 OK 194, ¶ 16, 434 P. 2 d 186, 190, overruled in part by O'Rourke v. City of Tulsa, 1969 OK 112, 457 P. 2 d 782. That determination in the district court and in this Court depends on whether the decision of the municipality is "fairly debatable. "1 In reviewing the judgment of the district court, [the appellate court] must look beyond the district court's conclusions and consider the basic, physical facts appearing in the record so as to ascertain whether the zoning decision is "fairly debatable. " The district court's independent conclusion as to whethere is a "fairly debatable" basis for the challenged zoning ordinance will be sustained unless it is against the clear weight of the evidence. Mid-Continent Life Ins. Co. v. City of Oklahoma City, 1985 OK 41, ¶ 10, 701 P. 2 d 412, 414 (footnotes omitted). If zoning decisions of a municipality have a substantial relation to the public health, safety, morals or general welfare, and do not constitute an unreasonable, arbitrary exercise of police power, the municipality's judgment will not be overridden by the district court. Id. at ¶ 9, 701 P. 2 d at 413.
“EVIDENCE” BEFORE THE PC (Rock Quarry Example) Actual Evidence Presented: 1. Expert reports (7). 2. Citizens and property value (35). 3. Local realtors concerning impact on property values. 4. EPA Reports and impact on superfund site. 5. Traffic Expert Report with actual evidence of traffic impact. Items that are NOT Evidence: 1. Citizen comments that “I just don’t like that use of the property. ” 2. Citizen comments that “I think it is ugly. ” 3. Citizen comments of “I just don’t want it there. ” 4. Citizen comments of “I was against the marijuana law change and don’t support it. ” 5. Citizen comment of “it will increase traffic. ” Every use increases traffic. 6. Our “community welfare” finding cannot contradict state law.
Unique City Benefits of SUP 1. Greater control of land uses that dominate an area, and the city ability to identify those, and to rely on “community welfare” as a factor. 2. Standard of review that benefits the City. 3. Greater burden on planning commission. 4. Ability to insulate and protect elected officials with the appeal process. 5. All should be careful that it is not abused.
CONCLUSION “The City determined that this use would have a substantial adverse impact on adjacent property, community welfare and public facilities. The district court concluded that the City's decision was supported by substantial and competent evidence. Conducting our independent review of the record, we conclude that the decision of the City to deny SSM's application for a special use permit is fairly debatable. ” ¶ 18 Is it fairly debatable that the use will have an adverse affect on adjacent property, community welfare or public facilities?
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