Dear Mayor, Veto the 71st & Harvard zoning amendment

I am sure that on further reflection, you remembered that you do in fact have the power as Mayor to veto any ordinance adopted by the City Council. This power is set forth in Article 2, Section 9 of our City Charter:

Every ordinance and resolution adopted by the Council shall be signed by the Chairman and delivered forthwith by the City Clerk to the office of the Mayor for approval. Within fifteen (15) working days following such delivery, the Mayor shall either approve or veto the ordinance or resolution. If vetoed, the ordinance or resolution shall be returned to the Council with a written statement of the objections of the Mayor. If neither approved nor vetoed by the Mayor in the time specified, the ordinance or resolution shall take effect as though approved by the Mayor.

An amendment to the zoning map is accomplished by ordinance (Title 42, Section 1700, Tulsa Revised Ordinances), and is therefore subject to the mayoral veto.

Your inclination to defer to the judgment of the City Council is understandable, indeed commendable. In this case, however, the City Council, the TMAPC, INCOG planning staff, and the City Attorney's office set aside the law and the protections it affords to property owners in order to satisfy the desires of a politically influential applicant. Specifically, laws regarding the comprehensive plan and protests of zoning amendments were ignored or deliberately misinterpreted in favor of the applicant and to the detriment of the protesting property owners.

Oklahoma law (11 O.S. 43-113) protects property owners by requiring that "Municipal regulations as to buildings, structures and land shall be made in accordance with a comprehensive plan." Tulsa has adopted a Comprehensive Plan, which includes a zoning matrix indicating which zoning classifications are in accord with which Comprehensive Plan designations. This zoning change was identified by INCOG staff as not in accord with the Comprehensive Plan designation for the site, namely low-intensity residential. Your appointee to the TMAPC, Dell Coutant, cited this fact as her reason for voting not to recommend approval of the zoning amendment. Recent court decisions, such as Bankoff v. Board of Adjustment of Wagoner County and the district court ruling by Judge David Peterson regarding the proposed Bell's roller-coaster have affirmed that a Comprehensive Plan is not merely advisory, but must govern zoning regulations. By approving a zoning amendment not in accordance with the Comprehensive Plan, the City Council has stripped neighboring property owners of a protection against loss of property value resulting from arbitrary rezoning.

Further, Oklahoma law (11 O.S. 43-105) protects property owners by providing a remedy against arbitrary rezoning which would endanger the value of their property. Tulsa's zoning law meets this requirement in TRO Title 42 Section 1703 E, requiring a 3/4 supermajority of the Council if owners of more than 50% of the property within 300 feet protest the amendment at least three days before the hearing before the City Council.

This condition was clearly met by the neighborhood, but your legal department and INCOG staff went out of their way to find pretexts for invalidating the protest. The neighborhood satisfied every requirement placed before them, only to have more requirements imposed. One of the protesting neighbors aptly compared the situation to a poker game where only one player knows the rules and keeps changing them to fit the cards in his hand.

First the neighborhood submitted signatures from a sufficient number of owners prior to the TMAPC hearing. INCOG staff raised doubts about the validity of a protest with only one spouse signing, or a protest signed on behalf of a trust without the word "trustee" appended. So amended protests were filed in a timely fashion to satisfy these concerns.

INCOG staff ignored the amended protests, claiming that they had to be submitted prior to the TMAPC hearing, when the ordinance clearly refers to the public hearing of the matter by the City Council. In fact, Patrick Boulden of the City Attorney's office had advised the counsel for the neighborhood and told the Council secretary that the ordinance referred to the City Council hearing, not the TMAPC hearing.

The City Council shall hold a hearing on each application transmitted from the Planning Commission and on any proposed Zoning Map amendment initiated pursuant to Subsection 1703. B. The City Council shall approve the application as submitted, or as amended, or approve the application subject to modification, or deny the application.... In case of a protest against such zoning change filed at least three days prior to said public hearing by ... the owners of 50% or more of the area of the lots within a 300' radius of the exterior boundary of the territory included in a proposed change such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the City Council.

You referred to the hearing as "democracy in action", but in fact it was a shameful moment in the history of our city, as six city councilors turned their backs on a timely, legitimate protest, submitted in good faith by property owners. Four of the councilors (Baker, Sullivan, Justis, and Patrick) didn't even
want a hearing of the matter.

You said that this would end up in district court regardless of the outcome, but as a zoning attorney you know that the City's legal department will effectively be supporting the cause of the bank if the zoning amendment is approved. By vetoing this amendment, you would put the City on the right side of this argument as it goes to court.

A veto would begin to restore public confidence in the zoning and planning process, and send a signal to the public that our Mayor is committed to fairness in zoning. Many citizens recall the long list of developers who contributed to your mayoral campaign and know of your tenure as a zoning attorney, and they suspect that you will automatically support whatever a developer wants. A veto would put the lie to that assumption and demonstrate that fairness is more important than helping your political supporters.

Mr. Mayor, you have until the 15th working day after approval to veto this measure. Please pray about it and think about it.

Sincerely,

Michael Bates