ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN ATTORNEY GENERAL OPINION REGARDING CONDITIONAL USE PERMITS. BECAUSE IT HAS BEEN THE LONG-STANDING POLICY OF THIS OFFICE NOT TO RENDER FORMAL OPINIONS CONCERNING MUNICIPAL ORDINANCES, THIS OFFICE HAS DETERMINED YOUR REQUEST SHOULD BE ANSWERED THROUGH THIS INFORMAL LETTER.
THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE ANALYSIS AND CONCLUSIONS WHICH FOLLOW, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTION YOU HAVE RAISED.
DOES TITLE 11 O.S. 3-105, ALSO APPLY TO CONDITIONAL USE PERMITS?
TITLE 11 OF THE OKLAHOMA STATUTES, ARTICLE 43, ALLOWS MUNICIPALITIES TO ENACT ZONING AND BUILDING RESTRICTING IN ORDER TO PROMOTE THE "HEALTH, SAFETY, MORALS, OR THE GENERAL WELFARE OF (A) COMMUNITY(.)" 11 O.S. 43-101. THE ARTICLE ALSO SETS FORTH PROCEDURES THEREFOR. ARTICLE 44 OF TITLE 11 OF THE OKLAHOMA STATUTES PROVIDES AUTHORITY FOR MUNICIPALITIES TO CREATE BOARDS OF ADJUSTMENT, WHICH WOULD HAVE THE POWER TO CORRECT ERRORS, TO DECIDE UPON SPECIAL EXCEPTIONS, TO GRANT VARIANCES FROM ORDINANCES, AND TO HEAR AND DECIDE OIL AND GAS APPLICATIONS AND APPEALS.
ARTICLE 43 ALLOWS ZONING AND BUILDING RESTRICTIONS TO BE MADE FOR SUCH REASONS AS:
1. TO LESSEN CONGESTION IN THE STREETS;
2. TO SECURE SAFETY FROM FIRE, PANIC AND OTHER DANGERS;
3. TO PROMOTE HEALTH AND THE GENERAL WELFARE;
4. TO PROVIDE ADEQUATE LIGHT AND AIR;
5. TO PREVENT THE OVERCROWDING OF LAND;
6. TO PROMOTE HISTORICAL PRESERVATION;
7. TO AVOID UNDUE CONCENTRATION OF POPULATION; OR
8. TO FACILITATE THE ADEQUATE PROVISION OF TRANSPORTATION, WATER, SEWERAGE, SCHOOLS, PARKS AND OTHER PUBLIC REQUIREMENTS. 11 O.S. 43-103, 11 O.S. 43-104 REQUIRES THAT PRIOR TO THE ENACTMENT OF ANY REGULATION, RESTRICTION OR DISTRICT BOUNDARY, PUBLIC NOTICE AND AN OPPORTUNITY FOR ANY INTERESTED PARTY TO BE HEARD AT THE MEETING MUST BE GIVEN.
THE LEGISLATURE ENVISIONED THAT ORDINANCES PASSED PURSUANT TO ARTICLE 43 MAY NEED TO BE CHANGED FROM TIME TO TIME. THEREFORE, 11 O.S. 43-105 PROVIDES:
"A. REGULATIONS, RESTRICTIONS AND DISTRICT BOUNDARIES OF MUNICIPALITIES MAY BE AMENDED, SUPPLEMENTED, CHANGED, MODIFIED OR REPEALED. THE REQUIREMENTS OF SECTION 43-104 OF THIS TITLE ON PUBLIC HEARINGS AND NOTICE SHALL APPLY TO ALL PROPOSED AMENDMENTS OR CHANGES TO REGULATIONS, RESTRICTIONS OR DISTRICT BOUNDARIES.
B. PROTESTS AGAINST PROPOSED CHANGES SHALL BE FILED AT LEAST THREE (3) DAYS BEFORE THE DATE OF THE PUBLIC HEARINGS. IF PROTESTS ARE FILED BY:
1. THE OWNERS OF TWENTY PERCENT (20%) OR MORE OF THE AREA OF THE LOTS INCLUDED IN A PROPOSED CHANGE, OR
2. THE OWNERS OF FIFTY PERCENT (50%) OR MORE OF THE AREA OF THE LOTS WITHIN A THREE HUNDRED (300) FOOT RADIUS OF THE EXTERIOR BOUNDARY OF THE TERRITORY INCLUDED IN A PROPOSED CHANGE; THEN THE PROPOSED CHANGE OR AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF THREE-FOURTHS OF ALL THE MEMBERS OF THE MUNICIPAL GOVERNING BODY WHERE THERE ARE MORE THAN SEVEN MEMBERS IN THE GOVERNING BODY, AND BY THREE-FIFTHS FAVORABLE VOTE WHERE THERE ARE SEVEN OR