71st & Harvard lawsuit filed

From the preliminary statement:

1. This matter is brought to secure for the citizens of Tulsa, and these Plaintiffs specifically, a fair process for protesting zoning changes which affect their neighborhoods. Plaintiffs further seek the entry of a permanent injunction, holding void an ordinance adopted by the City of Tulsa in violation of procedures established to assure fundamental fairness in the rezoning process, and other appropriate relief.

2. In the past thirty years, not once have homeowners' protests prevailed over commercial interests in zoning disputes before either the Tulsa Metropolitan Area Planning Commission (hereinaftereferred to as "TMAPC") or Tulsa's City Council. In the case at bar, Defendant, City of Tulsa (hereinafter referred to as "City"), used the overwhelming weight of its resources to steamroll a relatively powerless group of homeowners, residing in the vicinity of 71 st Street and Harvard Avenue, in the name of economic development. In pursuit of its goals, the City disregarded homeowners' rights, the rule of law and simple principles of fairness and due process.

2. Consistent with the constitutional protection of the right to petition one's government for the redress of grievances, the laws of Oklahoma and the ordinances of the City of Tulsa secure for homeowners the right to protest the rezoning of their neighborhoods.The Constitutions of the United States and the State of Oklahoma, the laws of the State of Oklahoma, and the ordinances of the City of Tulsa further secure the right to due process for citizens seeking to protect the quiet and peaceful enjoyment of their property. In the case at bar, the City, by its arbitrary, unreasonable, irrational, and capricious actions, took away these rights, denying these citizens and others their right to due process and to petition their government.

3. In the face of protest petitions, which would have effectively blocked the request of Defendant, The F&M Bank and Trust Company (hereinafter referred to as "F&M"), to rezone the property at 71 st and Harvard Avenue by requiring a three fourth's majority vote of the City Council for approval, the City took a series of deliberate steps calculated to negate the protests and deny Plaintiffs their rights. The City repeatedly changed the rules in mid-stream, denied Plaintiffs a fair hearing, and employed hypertechnical and legally unsupportable standards in considering these protests. All of this was done in a calculated effort to deny these citizens their rights. These actions, designed to ensure the defeat of the rezoning protests, include, but are not limited to:

• changing the date required for the filing of protest petitions;
• denying the protestors notice and a fair hearing on the legitimacy of their protest petitions;

• rejecting signatures because they were printed rather than in cursive; rejecting signatures on behalf of trusts because the signatory's name was not followed by the word "trustee";

• rejecting signatures because both husband and wife did not sign with respect to jointly owned property, even where proof was offered that one spouse had authority to sign for the other;

• changing the zoning map the day before the City Council hearing to exclude lots of protesting land owners;

• refusing to accept, as timely, amendments to the protest petitions that were necessitated by ever-changing rules and procedures for determining the validity of the protests;

• and including City-owned land in the computation of the overall land area for the purposes of the protest.
  

Ultimately, because the City arbitrarily created rules that were slanted overwhelmingly in favor of F&M, the protest was lost, and the homeowners were effectively silenced.

4. Plaintiffs in this case seek to reclaim their homeowners' rights and to protect the peaceable enjoyment of their property. Plaintiffs in this case seek to put an
end to the denial of fair treatment for neighborhoods in order to serve the interests of commercial developers. Plaintiffs in this case seek to have their protests heard and counted; the ordinance approving this zoning change voided; and fair procedures established for the consideration of such protests in the future.

The petition goes on to cite the legal basis for the protest petitions and mentions that no written procedures or standards exist

26. The rules employed by TMAPC staff and the City Attorney's office to I determine the validity of these protests were arbitrary, unreasonable, irrational and capricious. The City used the strictest of standards, rejecting protest petitions on hypertechnical grounds. Some of these alleged dfficiencies included: (a) petitions signed in print rather than cursive; (b) petitions signed by just one owner in cases where the property had multiple owners; (c) petitions signed by the trustee of property held in trust, but the trustee not having denoted his capacity as "trustee"; and (d) all petitions signed by authorized agents for the landowners, regardless of the proof of agency.

27. Despite the fact that the City had no valid basis for rejecting the protest petitions filed on July 31 and August 6, the protesting homeowners took measures to conform the rejected petitions to the City's specifications. On August 25, 26 and 27, 2003, the protesting homeowners filed supplemental protest petitions with the City Clerk, and later filed additional information, correcting and clarifying the alleged technical errors.

28. By August 27, it was clear that valid protests had been filed by owners of over 50 percent of the lots within a 300-foot radius of the exterior boundary of the F&M property.

29. While the supplemental protests were filed more than three days before and the protests to it, TMACP recommended rejection of the August 25, 26 and 27 supplemental protests as being untimely, and excluded all of the clarifying information later filed between the TMAPC hearing and the City Council hearing. TMAPC's theory for rejecting these supplemental petitions wasl that they were not filed three days prior to the first meeting of the TMAPC to consider F&M's application. This theory has no support in the law. The protest laws provide that rezoning protests must be filed within three days of the "public hearing." A careful reading of the statute demonstrates that the legislature set the deadline at three days before the City Council hearing, not three days before the TMAPC meeting. If there was any ambiguity in the statute, City ordinance makes it explicit that, for its purposes, the City of Tulsa requires the protest deadline to be three days before the City Council hearing. With all this said, if there was ambiguity, the statute and ordinance must be interpreted if favor of allowing the protest to be heard.

30. The application of the rule requiring protest petitions to be filed three days before the TMAPC hearing rather than three days before the City Council public hearing was a change in the City's interpretation of the statute and of its own ordinance, As a general matter, with rare, if any, exception, when considering previous protests, the City required the protests to be filed three days 1fior to the City Council hearing, not three days before the earlier meeting of the TMAPC. This change in policy was made after the fact and was for the clear purpose of defeating these property owners' right to have their protests heard before the City Council and to prevent the requirement that the rezoning be approved only by a supermajority. The rejection of the supplemental protests, by changing the relevant deadline for filing protests, was the first in a series of efforts to deny the property owners their right to protest and to assure the protests' failure. ...

36. On October 29, 2003, one day before the rezoning issue was to be again considered by the City Council, representatives of the protesting homeowners, F&M and the City participated in a protest "invalidation" meeting. At this meeting, the City made clear the extent to which it would go to invalidate the petitions of the homeowners. Again, the protestors were not given written notice, an opportunity to cross-examine witnesses against them, or the right to call witnesses on their behalf.

And here is an account of what went on at the invalidation meeting:

37. During the October 29th meeting, TMAPC staff announced that, after the protests were filed, it had changed its survey of the 300-foot radius from the F&M property, so that the property owned by two protesting homeowners ("Smith and Tate properties") would no longer be counted. The Smith and Tate properties amount to 1.3 acres, which should have been credited to the protesting homeowners. TMAPC has never explained why it opted to drop the Smith and Tate properties at such a late date, and, given the nature of the meeting, the protestors were never afforded an opportunity to challenge this change in the map.

38. Furthermore, during the October 29, 2003 "invalidation" meeting, TMAPC, for the first time, circulated a chart showing it did not count protests (including the Carol Land protest) filed with the City Clerk in August, amounting to .85 acres. In addition, the TMAPC chart showed that, despite the protesting homeowners' corrections of the alleged deficiencies, the agency continued to deem invalid several protests on hyper-technical grounds, such as printing of signatures or failure of a trustee to include "trustee" by the signature. These technicalities were used to exclude 5.44 acres, which should have been included in the count of the protested property. Moreover, the TMAPC chart denied credit to the Guier Woods protestors for their share of the common elements. But for the use of these and other legally unsupportable technicalities, the protesting homeowners would have easily met the 50 percent requirement to force a supermajority City Council vote.

To make the point clear: Way back in August, long before the first hearing before the City Council, the homeowners submitted corrected petitions as well as clarifying information to respond to all the reported objections to their petitions. In the October invalidation meeting, the TMAPC staffers threw out all these petitions, claiming an earlier deadline than that clearly spelled out in the law.

And finally, the neighborhood's failed attempt to appeal to the Mayor for relief:

42. On November 3, 2003, Plaintiff Mona Miller contacted an assistant to Mayor Bill Lafortune, explaining that the City Council had erred in choosing to reject the protests. Ms. Miller further offered to show the Mayor's assistant a videotape of the October 30th Council hearing and asked that the Mayor meet with the protesting homeowners before signing the ordinance. Ms. Miller further mentioned to the Mayor's assistant that the protesting homeowners were prepared to sue, if the matter was not resolved. Mayor Lafortune initially signed the ordinance, and then had his signature "whited out." On or about November 15, 2003, Deputy Mayor Steve Sewell approved the F&M rezoning ordinance. Neither Deputy Mayor Sewell nor Mayor Lafortune explained why Mr. Sewell signed the ordinance as opposed to the Mayor himself.