Posted by: Patricia Salkin | August 9, 2022
OK Appeals Court Focuses on Distinction Between Commercial and Recreational Vehicles and an RV Classified as Both Following Variance Denial
This post was authored by Sebastian Perez of Touro University Jacob D. Fuchsberg Law Center
When the owner of a photography business requested a variance to store her RV in her driveway, the city board’s denial turned into a question for the Court of Civil Appeals of Oklahoma. The Board’s denial was brought before the District Court on appeal where it was determined the RV was not subject to the restrictions of the local ordinance and granted the variance. This appeal follows.
Plaintiff filed a variance requesting that the RV she used for her photography business be exempt from Broken Arrow Zoning Code Section 5.4(K)(4), which prohibit recreational vehicles from parking or being stored on the premises for more than 24 hours, to park in front of the building. The Board denied the request after a hearing and claimed it was because several application requirements were not met. Plaintiff appealed the Board’s decision to the District Court of Tulsa County and a trial de novo was held. The trial court held Plaintiff’s RV was a commercial vehicle and exempt from the city’s ordinance and granted the variance allowing the RV to park on front of the property. The Board appealed the district court’s order.
The Court of Appeals of Oklahoma reviewed the lower court’s order to determine whether it was against the clear weight of the evidence or Contrary to law and reviewed questions of law de novo. The Board argued that the trial court erroneously applied the definition which looked to use of the vehicle instead of its design and created a loophole where RV owners could store their vehicles in their driveways by licensing them as a commercial vehicle and using them for business purposes. The Court first held that the vehicle’s classification as a commercial vehicle did not exempt it from further requirements as a recreational vehicle under the ordinance. Based on the plain meaning of the definition for a recreational vehicle within the local zoning code, it was clear the RV fell within that category. Also relevant, nothing in the code exempted an RV from the restriction of parking in front of the building when classified as a commercial requirement. The Court then held the trial court erred in determining the Plaintiff’s RV was not subject to the parking restriction of the statute. The Court further concluded that the trial court erred in granting the Plaintiff a variance because she failed to meet her burden of proving each criteria necessary to obtain a variance. The Court agreed with the Board failed to meet the requirement of a variance where the trial court did not find a condition or peculiar circumstances or unique to the Plaintiff’s property; the application of the ordinance to the Plainiff’s property did not create n unnecessary hardship; and the variance granted was not the minimum necessary to alleviate the alleged unnecessary hardship.
McCleary v City of Broken Arrow Board of Adjustment, 2021 WL 6881259 (OK App. 2/9/2022)
Posted in Variances, Zoning – Interpretation