OK Supreme Court Finds Board of Adjustment had Authority to Grant Conditional Use Permits for Wind Farm

Mustang Run Wind Project, LLC, 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. The Board denied the application and Mustang filed an appeal in the District Court for Osage County, which ordered the County Board of Adjustment to issue a conditional use permit. The Osage County Board of Adjustment and the Osage Nation appealed.

On appeal, Osage Nation argued 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. Historically, the court noted that the Boards of Adjustment were 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 corresponded to that historic role. Thus the court found the Board’s conclusion was consistent with the Legislature’s attempt to provide Oklahoma landowners a procedure for seeking approval for uses of their property that would otherwise be disapproved upon application of zoning ordinances.

The court also agreed with the trial judge’s determination that Mustang’s application for a conditional use satisfied the applicable ordinances. Here, the trial judge determined the objections were not based upon credible evidence and some of them lacked a quality of reasonableness. The court found that these factual findings were supported by the evidence before the trial judge. Accordingly, the court held the Osage County Board of Adjustment possessed authority to grant conditional use permits, found the trial judge’s findings were not against the clear weight of the evidence, and affirmed the trial court’s judgment requiring the Board of Adjustment to issue a conditional use permit with any additional reasonable conditions.

Mustang Run Wind Project, LLC v. Osage County Board of Adjustment, 2016 WL 6462378 (OK 11/1/2016)