| Opinion: | McCleary v. City of Broken Arrow Bd. of Adjustment, 2022 OK CIV APP 2 |
| Subject matter: | Municipal Law |
| Date Decided: | December 17, 2021; Mandate Issued: February 9, 2022 |
| Trial Court: | District Court of Tulsa County; Judge Cantrell |
| Route to this Court: | Appeal of trial court’s order reversing Bd. of Adjustment’s denial of a variance. |
| Facts: | McCleary filed an application for a variance to allow her to store her recreational vehicle (RV), which she used in her photography business, in her driveway in violation of Broken Arrow Zoning Code. The RV was registered with the Oklahoma Tax Commission (OTC) as a commercial vehicle, and not as an RV (which the OTC considers a type of non-commercial vehicle). The Board of Adjustments denied the variance. Following an appeal to the District Court of Tulsa County, which held a trial de novo, the trial court determined that the RV was a commercial vehicle and therefore not subject to the restrictions in the applicable Broken Arrow ordinance. |
| Standard of Review: | Proceedings in the district court on appeal form a decision of the board of adjustment in zoning matters are generally characterized as equitable in nature, thus reviewed to determine whether the trial court’s decision is against the clear weight of the evidence or contrary to law. Questions of law are reviewed de novo. |
| Analysis: | Both parties agree that McCleary’s recreational vehicle (RV) is a commercial vehicle as such is defined in the Broken Arrow Zoning Code. The primary question on appeal is whether the vehicle, which could be categorized under the Code as both a commercial vehicle and as an RV, must comply with regulations for both vehicle types, or whether there is a primary regulation with which sole compliance is sufficient. It is undisputed that McCleary’s vehicle was designed as an RV. There is nothing in the Broken Arrow Zoning Code that exempts an RV from the ordinance which prohibits certain parking of an RV in front of a house if the RV may also be classified as a commercial vehicle under the Code. On this basis, we hold that the trial court erred in determining that McCleary’s RV was not subject to the restrictions on RV parking in the Code. We further conclude that the trial court erred in granting McCleary a variance because she failed to meet her burden of proving each criteria necessary to obtain a variance under 11 O.S. 2011 §44-107 and the Code. |
| Outcome: | Reversed |
| Vote: | 2-1 CONCUR: Bell, P.J. (author), Prince J. (sitting by designation). DISSENT IN PART: Swinton, C.J. |
| Other: | Oral argument was taken in this case on November 18, 2021. Appellee filed a Petition for Rehearing on December 30, 2021. Order Denying Rehearing is dated January 12, 2022, but was not marked as filed until January 18, 2022. Appellee filed a Petition for Certiorari by mailing the same on February 16, 2022…a week after the mandate was issued. |