Tulsa BoA denies Riverview apartment complex variances

Congratulations to the Riverview Neighborhood Association and well done to the City of Tulsa Board of Adjustment (BoA). On Tuesday, May 8, 2012, the BoA denied variances that would have allowed a 10-unit townhouse complex on a single lot, once occupied by a single home, at 21st and Cheyenne. (BOA case 21413 at 1935 S. Cheyenne -- click to review the application.)

Although the lot was zoned Residential Multifamily (RM-2), the proposed development violated several setback and height requirements of the zoning code, requiring the developer to seek variances from the zoning code in order to get a construction permit, specifically:

• Variance of building setback from an arterial street from 35 ft to 10 ft (Section 403 Table 3),
• Variance of the single-story limitation for multi-family dwellings within 50 ft of an RS district (Section 403.A.1),
• Variance of height limitation from 35 ft to 40 ft. (Section 403 Table 3).

Please note that these requirements come from the existing zoning code, which has been in place for well over 30 years. Note that they deal with the proposed building's form. Some people of my acquaintance are of the misapprehension that property owners could do as they pleased until recently, but now soldiers in blue helmets have descended upon us in their black helicopters to impose PLANiTULSA and enslave us with their form-based codes to turn us all into United Nations drones. Or something like that. In fact, we have a zoning code now, we've had land-use regulations of some sort since Tulsa was incorporated, and we've had zoning since the 1920s. While the new comprehensive plan, known as PLANiTULSA, recommends changes to the zoning code, those changes haven't been drafted yet, much less approved.

Please also note this lot that, until recently, housed a single family home was zoned multifamily as a result of an ill-considered blanket "upzoning" imposed by the city decades ago under a previous version of the comprehensive plan, which saw this wedge-shaped area of single-family homes and brick low-rise apartment buildings, between I-244, the Inner Dispersal Loop, and the proposed Riverside Expressway, as the perfect place for squat cinder-block apartment complexes.

So the BoA evaluated these proposals in accordance with the existing zoning code, which requires the applicant for a variance to show a hardship. The hardship can't be self-imposed -- "I can't make my money back on the lot unless you let me build this" isn't sufficient. A good example of a hardship is a curved or unusually shaped lot, where the proposed building meets the setback requirement for most of the lot, but misses it by a foot or two where the lot curves. Rather than make the owner curve the building to match the setback line, the BoA would grant a variance to allow a straight building wall. The BoA is a quasi-judicial body, required to follow the law and precedent, required to consider impact of the proposed changes on neighboring properties. An appeal of a BoA decision would be made in District Court. The BoA can't whimsically waive the zoning code to allow a developer to build whatever he wants.

The BoA voted unanimously to deny the variances. The BoA's composition is a positive legacy from Mayor Bill LaFortune's administration, which his successors have wisely left untouched. LaFortune appointed Frazier Henke, Mike Tidwell, and Clayda Stead to the board. Surveyor David White had served as chairman during the Savage administration (the best member of the pre-LaFortune board) and was brought back to the BoA by Kathy Taylor, who also appointed Stuart Van De Wiele. LaFortune's three appointees reestablished the principle that the zoning code was to be followed as written, with variances granted only where a true hardship exists. Getting a variance shouldn't be just a matter of hiring an influential zoning attorney.

Realtor Lori Cain, who lives next door to the subject property, led the opposition to the variances and notes on her blog that the owner has several profitable options within the existing zoning code.

Urban infill is the process of developing vacant or under-used parcels within existing urban areas that are already largely developed. While we ENCOURAGE infill, we expect that the infill be appropriate for the neighborhood, accommodate existing architectural style, -- and not create additional public safety and storm water issues.

Why should the developer's right to make a profit be given more consideration than OUR investments in our personal homesteads? Why should he not build within the zoning restrictions KNOWN to him at the time of his purchase? He could easily build a single-family dwelling and sell it at a profit. Or, if he's insistent on rentals, he could build an upscale duplex or triplex within existing zoning restrictions.

You can watch the May 8, 2012, City of Tulsa Board of Adjustment hearing online via TGOVonline.org. Here's a direct link to the video stream of the May 8, 2012, City of Tulsa Board of Adjustment hearing.

MORE: If Frazier Henke's name seems familiar, it's because his wife, Katie Henke, was the Republican nominee for the recent House District 71 special election and almost certainly will be again for the regular fall election. Katie led by one vote after a recount, but there were more disputed ballots than the margin of victory, leading the Oklahoma Supreme Court to throw out the election and leave the seat vacant until the regular election. Frazier Henke is also the son of Bonnie Henke, a neighborhood leader and advocate for compatible infill development. (Because of that advocacy, Bonnie was targeted for defeat by certain developers when she ran for the District 9 city council seat in 2002, losing the GOP primary by a very narrow margin to Susan Neal.) Frazier is a fair and honorable decision-maker, Tulsa is blessed to have him as BoA chairman, and I'm blessed to count him as a friend.