¶ 1 Mustang Run Wind Project, LLC, (Mustang) filed an application with the Osage County Board of Adjustment for a conditional use permit involving between 9,406 and 9,453 acres of land. Mustang proposed to use the land for placing sixty-eight wind turbines on less than 150 acres and generating electricity.
¶ 2 Mustang filed an appeal in the District Court for Osage County. The Osage Nation and Osage Minerals Council filed a motion to intervene in the District Court proceeding. The motion to intervene was granted and they filed a trial brief.
¶ 3 At a trial de novo counsel for the parties presented argument and relied upon evidence submitted to the County Board of Adjustment. The trial judge's five-page order found for Mustang and ordered the Board of Adjustment to issue a conditional use permit to Mustang. Osage County Board of Adjustment and Osage Nation filed an appeal to this Court and we retained the appeal.
¶ 4 Osage Nation argues the Osage County Board of Adjustment "had no power or authority to approve a conditional use permit" because such power was not given by the Legislature to counties. The Osage Nation invokes language of unauthorized legislative power exercised by a county board of adjustment in providing a special use permit and this district court's review of the board's decision on a request for such a permit. Osage Nation identifies five "county zoning and enabling acts" of the Legislature and argues that none of these statutory schemes allows a county board of adjustment to grant a special use permit.
¶ 5 The Osage Nation's argument centers on both 19 O.S. 2011 865.63 and 866.23. Osage Nation argues 866.23 gives a county board of adjustment "only three powers," to (1) decide an appeal where an error of law has occurred, (2) decide requests for map interpretations or decisions on other special questions, and (3) authorize a variance from zoning that would cause a hardship based upon the shape or topography of property.
19 O.S.2011 866.23.
Section 866.23 is part of the City-County Planning and Zoning Act, 19 O.S. 2011 866.1-866.35. The language in 865.63 is part of the County Planning and Zoning Act, 19 O.S. 2011 865.51-865.69. The language in 865.63 of the County Planning and Zoning Act is not identical to the language in 866.23 referencing a City-County Planning and Zoning Commission.
¶ 6 The Osage Nation points to three statutes relating to municipal boards of adjustment, two allowing "special exceptions"(11 O.S. 44-104 and 44-106) and one a "specific use permit" (11 O.S. 43-113); and argues that "if the Legislature intended for counties to have the power to grant a specific or conditional use permit, it would have amended the City-County Planning and Zoning Act in 2003 when it amended the Oklahoma Municipal Code to grant the power to the governing body of a municipality to approve specific use permits."
¶ 7 The language in 866.23 relied on by the Osage Nation also appears in 19 O.S.2011 863.21. This language has appeared continuously in county zoning statutes since the various forms of comprehensive county zoning legislation were enacted in 1949.
¶ 8 Osage Nation also concludes this lack of authority to issue a conditional use permit by a county board of adjustment also strips such authority from a District Court to approve a conditional use permit in a statutorily authorized review of the board's decision in a District Court trial de novo.
¶ 9 A zoning variance and a special permit granted by a local government entity are historic procedures designed to (1) act as a safety valve when applying a zoning regulation to "prevent governmental restrictions from operating in such a manner that the burden on an individual landowner amounts to a taking," and (2) adjust application of ordinances impacting upon an owner's proposed use of property unforeseen when ordinances were created.
¶ 10 The Pawhuska-Osage County Planning and Zoning ordinances adopted by the Osage County Board of County Commissioners (1) state they are adopted pursuant to 11 O.S. 101-109 (Chapter 43), & 19 O.S. 866.1-866.36 (Ordinance 1.1), (2) establish areas allowing conditional use permits (Ordinance 1.7.1), (3) create a Board of Adjustment (Ordinance 6.1) and (4) authorize the Board of Adjustment to grant conditional use permits (Ordinance 6.5.2). A board of adjustment authorized by Pawhuska-Osage County Planning and Zoning ordinances to hear an application of a special use permit is within the board's statutory authority to hear and decide requests for a decision authorized by 866.23. Boards of adjustment were historically given the power to "adjust" the application of zoning ordinances and the board of adjustment's authority in this case to issue a conditional use permit corresponds to that historic role. Our conclusion is consistent with viewing 866.23 in harmony with common sense, reason, and our State Constitution, and as an effort by our Legislature to provide Oklahoma landowners a procedure seeking approval for uses of their property that would otherwise be disapproved upon application of zoning ordinances.
¶ 11 We reject the claim made by Osage Nation that a property owner in Osage County may not obtain a conditional use permit for proposed uses of his or her property. Because we reject this argument we also reject the claim a District Court lacks authority to review a decision made by a county board of adjustment.
¶ 12 Osage County Board of Adjustment argues (1) the trial judge failed to
¶ 13 Osage County Board of Adjustment's appellate brief does not refer to the record on appeal for the substance of the ordinance or to any argument relating to judicial notice of a county ordinance. An examination of the trial court record on appeal shows a filing by Mustang which has attached an uncertified and undated photocopy of a document purporting to represent a portion of the Pawhuska Osage County Planning Area: Zoning Ordinance, and containing Section 6.5.2 (8).
¶ 14 The argument is simply: the trial court did not cite to ordinance 6.5.2 in its order, so the trial court must not have considered it when making its decision. Board argues it has authority to consider "the general welfare" of the people of Osage County when making its decision and this was not considered by the trial court. Section 6.5.2 states in part:
During one proceeding the trial judge listed what he understood to be all objections made against Mustang's project, asked counsel if he had missed anything which needed to be added to that list for his review, scheduled trial briefs, and provided an opportunity if counsel wanted to call witnesses presenting new material.
¶ 15 The trial judge's order addressed objections to Mustang's project which related to the project's effect on: (1) mineral interests owned by the Osage Nation, (2) eagles, prairie chickens, and/or birds, (3) the Tallgrass Prairie and/or the views of the area of the Osage Nation Heritage Trail Byway. The judge also reviewed objections concerning decrease in neighboring land values, and presence of towers which "may be blown over, cause fires and/or throw ice off turning blades," and the effect of a project when "there may be Indian burial sites and/or historical artifacts."
¶ 17 The trial judge made specific findings of fact concerning objections relating to Mustang's project and the presence of eagles and the greater prairie chicken population. He characterized as "pure speculation" the claim an eagle could fly into a wind turbine blade and die. He noted the absence in the record of any scientific study on the issue, and no agency charged with preservation of eagles had objected to the project. He determined there was no evidence showing an adverse effect upon the prairie chicken population by Mustang's project.
¶ 18 He compared the "small footprint of the turbines" to the footprint of drilling rigs or a tank battery, and questioned the parties' argument concerning the negative impact on viewshed of an area including wind turbines where the Osage Nation "requires so many wells be drilled in this area." He noted this small footprint in an area where oil drilling occurs and denied the objection based upon the viewshed of the Tallgrass Prairie and the Osage Nation Heritage Trail Byway. The trial judge found the allegation of harm to mineral interests to be "without merit."
¶ 19 The trial judge made a finding "There was no evidence that any burial sites and/or Indian artifacts are, were, or ever were in the area covered by the leases" and characterized this argument by the parties as "pure speculation."
¶ 20 The trial judge noted the use of adjoining property for cattle and horses. He determined that "the wind farm would have no effect at all on use of adjoining property" and "any objection as to decreased property values is pure speculation." The trial judge also considered the Osage Nations' argument that the Osage County Board of Adjustment did not have authority to approve or reject Mustang's project. He denied this objection. The trial judge's findings include the following.
The trial judge noted the positive benefit of increased revenue to the Shidler School District from Mustang's project, and he compared the increased revenue Shidler District would receive to the revenue currently received by another school district.
¶ 21 The police power of the state operates when necessary to protect the health, morals, safety, and general welfare of the public.
¶ 22 As observed by the U.S. Supreme Court in 1995, "land use restrictions aim to prevent problems caused by the `pig in the parlor instead of the barnyard.'"
¶ 23 The Board of Adjustment's allegation of error includes the concept that the form of the trial court's order is erroneous because no citation of the ordinance appears on the face of the order. Historically, the form of a judgment did not negate it's legal vitality when the court record shows the order was intended to be a judgment, and it could be determined (1) whom the judgment was in favor of, (2) whom against, and (3) what the court ordered or decreed should be done, together with the amount of recovery, if there was a money judgment.
¶ 25 The Board makes a similar argument and argues in its appellate brief the order of the trial court does not "specifically cite" an Osage County Wind Ordinance. Again, appellant's argument is that the ordinance is not cited, and thus must not have been applied and this failure necessarily shows trial court error. Appellant does not cite the appellate record where this ordinance occurs or the effect of the ordinance's application to this controversy. Mustang's trial court brief discusses the Wind Energy Ordinance and has attached thereto an uncertified photocopy of material purporting to be the Wind Energy Ordinance which corresponds to statements made by the Osage Nation.
¶ 26 Mustang's brief argues the ordinance provides "land in Osage County may be utilized for construction of wind farms, and "the Board of Adjustment has authority to grant conditional use permits for wind energy projects."
¶ 27 Mustang's trial brief argues that the Board of Adjustment recognized Mustang had satisfied federal and state requirements as well as requirements of the applicable ordinances. The brief then quotes the chairman of the Board of Adjustment and a statement for the denial of Mustang's application: "We're really here to look at from our vision, is this appropriate for adjacent landowners and is it appropriate for the county." The brief argues that the Board of County Commissioners and Zoning Board had already determined a wind farm was appropriate in Osage County, and the Board of Adjustment was failing to properly apply both Ordinance 6.5.2 and the Wind Energy Ordinance.
¶ 28 The Board of Adjustment's trial brief argues it possesses the discretion to deny an application for a conditional use permit for a wind farm when an applicant has satisfied the Wind Energy Ordinance. It asserts that its authority to consider the "general welfare" of the citizens is sufficiently broad to give it discretion to deny the permit. Osage Nation argues the Board's denial of the application was correct, there is a presumption
¶ 29 A board of adjustment's decision to deny a conditional use permit is subject to judicial de novo review in a District Court: "Said cause shall be tried de novo in the District Court and said Court shall have the same power and authority as the County Board of Adjustment, together with all other powers of the District Court in law or in equity."
¶ 30 We have stated "A governmental entity may broadly use its power to regulate land use unless the regulation does not have a substantial relationship to the public health, safety, morals, or general welfare or is an unreasonable and arbitrary exercise of its police power."
¶ 32 The record before the trial court included a transcript of the board's meeting when the vote was taken to disapprove the conditional use permit. Three members voted to disapprove, one abstained, and the chairman did not vote. Comments were made by the chairman and a board member. One comment was "we're really here to look at from our vision, is this appropriate for adjacent landowners and is it appropriate for the county." This comment was followed by some general comments by the chairman concerning his uncertainty about the exact economic benefits the county would receive from Mustang's proposed project.
¶ 33 When the Osage County Board of Adjustment approves a conditional use permit it "shall make written findings certifying that the application complies with the pertinent individual conditions of use as set forth in Article 3 [of the Ordinances]."
This ordinance states the Board may "deny the application" and both Osage Nation and the Board of Adjustment argue this power to deny the application is a power to deny a conditional use permit even when an applicant has satisfied the requirements of all relevant ordinances. None of the appellants has pointed to any statutory authority that a board of adjustment possesses legislative power to rewrite a zoning ordinance approved by its board of county commissioners. A board of adjustment does not possess "unconfined and unrestrained freedom of action" to "depart from a comprehensive plan."
¶ 34 Consistent to some extent with this view, Osage Nation and the Board of Adjustment also argue Mustang failed to present facts showing that public health, safety, morals, and general welfare of adjacent landowners in particular would not be harmed if the project was approved. Statements from adjacent landowners stated they would be harmed from the project, but the trial judge found the nature of this alleged harm to be speculative.
¶ 35 The trial judge determined Mustang's application for a conditional use satisfied the applicable ordinances. The trial judge determined the objections were not based upon credible evidence and some of them lacked a quality of reasonableness. That record is before us in the present appeal. We must agree with the trial court's factual findings if they are supported by the evidence before the trial judge.
¶ 36 The trial court agreed that the Board of Adjustment possessed discretion to impose reasonable conditions in addition to those created by the relevant ordinances. The trial judge ordered the Board of Adjustment to issue a conditional use permit to Mustang "with such additional reasonable conditions as can be shown with a basis therefore." More than twenty years ago we noted a trial judge's fairness in granting a board a second opportunity to decide under what conditions a permit would be granted, rather than just ordering the permit issued as the judge was authorized to do.
¶ 37 The effect of the trial judge's ruling is that when a zoning ordinance allows a property owner to use his or her property in a manner desired by the owner upon a showing that such use will be in accordance with reasonable conditions, then the objections to such use must also be founded upon reason and evidence. Zoning laws, including both the granting and denial of special use permits, may not be imposed in an arbitrary and capricious manner. Property rights and the use of property are fundamental rights on which this country was established, and it is a board of adjustment's duty to determine the reasonableness of a property owner's request based upon the evidence before the board.
¶ 38 The Osage County Board of Adjustment possesses authority to grant conditional use permits. The trial judge's findings are not against the clear weight of the evidence. The trial court's judgment requiring the Board of Adjustment to issue a conditional use permit with any additional reasonable conditions is affirmed.
¶ 40 REIF, C.J., not participating.