Land use regulations take away rights from land owners. There is a basic premise that says, as a land owner I have a right to use my property any way I see fit.
Zoning and other land use laws restrict my use of property. Such restrictions help protect against incompatible land uses occurring on adjacent properties or buildings being placed on one property in a way that negatively affects the use of adjacent properties. Property restrictions help maintain peace and harmony in a community of many different land owners.
But it’s a delicate balance between assuring compatibility of land uses and building placement, while allowing land owners enough flexibility to get maximum desirable use of their property without undue burden of administrative processes.
Whenever the government imposes regulations, there must be a compelling public interest that serves the majority of the community. There must also be considerable thought given to anticipate unintended consequences. Since all possible outcomes can’t be seen in advance, there must be an appeal or variance process that is fair and not in itself unduly burdensome.
Section 223 in Tulsa’s zoning code says you must get approval from the Board of Adjustment to erect a tent that is accessory to a principal use if the tent is more than 900 square feet and located outside the CBD.
So, let’s say a large retail store wants to allow an event promoter to hold an open air crafts fair in its parking lot and the promoter wants to erect tents in the parking lot that are larger than 900 square feet. They must get approval for the land use (crafts fair and tents) from the Board of Adjustment. Then they must get a tent permit from the City that is equivalent to a building permit.
In this case the land use is the crafts fair and its tents. It is unrelated to the principal use of the property (retail store). The tents are accessory to the crafts fair but not the retail store. The crafts fair and its accessory tents needs to be reviewed to make sure it doesn’t take up any of the retail store’s required parking, that it meets all of the required setbacks and that its traffic does not create a hazard or undue burden on the surrounding land uses. That’s the compelling public interest and it is government’s job to protect the public’s right to use their own adjacent property.
The tents must also have tent permits which consider how the tents are to be erected and how movement of the public in and out of them is to be managed. The compelling public interest is safety. The public must be protected from the tents collapsing and proper ingress and egress provided in case of fire or other emergency. Again, a proper role of government.
Let’s take another example. In a public park such as River Parks, an event promoter wants to hold a bicycle race and festival. The promoter wants to erect tents in the park that are larger than 900 square feet. The zoning officer at the City determines they must get approval from the Board of Adjustment for these tents under Section 223. We already know they must also get a tent permit to assure a safe tent installation.
The promoter balks at the requirement to get approval from the Board of Adjustment arguing that the festival and tents are a customary principal use in the park. Parks are set aside and made available for public gatherings and festivals. That’s their purpose. The land use is already approved because it was contemplated when the park was established.
Further, the street adjacent to the park where the festival will be held has already been approved for closure by the City. The neighborhood residents adjacent to the street have been notified of the closure, the races, and the festival. They are in support of the event.
There is no compelling public interest served by requiring special approval of the festival tents by the Board of Adjustment, and in fact Section 223 is not applicable because the festival tents are a principal use of the park, not an accessory use. The only public interest that is necessary for government to oversee is public safety, so the tent permit remains a good idea.
This is a situation where the ordinance was adopted for good reasons but without considering the impact to all of the possible scenarios. In fact it’s nearly impossible to consider all scenarios, and that’s why we have a Board of Adjustment to serve as a relief valve. But the process to go before the Board is lengthy and expensive and if the promoter reasonably believes it won’t be necessary then finds out too late to file the application for a timely hearing, it will be an unnecessary disruption to an event that provides many positive benefits to the community.
But the zoning officer’s hands are tied. He must apply the ordinance equally to all situations. If he is not allowed flexibility to evaluate individual situations and determine the applicability of the ordinance, he has no choice but to render a literal interpretation. Since the ordinance doesn’t differentiate between the two examples above, he must conclude that all tents over 900 square feet must go to the Board of Adjustment regardless of the individual circumstances.
So in summary, the difference is that the crafts fair is not a customary use of a retail store parking lot and it potentially could cause a burden on adjacent properties by reducing the retail store’s required parking, erecting tents too close to the street and blocking visibility, creating traffic congestion.
The bicycle festival is a customary use of a public park and is to be expected by adjacent property owners. There is ample open space to erect the tents without causing visibility problems or covering up required parking . The plan for the festival has already been reviewed by the City and the Police Department and the street closure and cooperation of adjacent neighbors mitigates any traffic or parking problems.
See how complicated it can get regulating land use?