Tulsa Zoning: October 2003 Archives

As always, Thursday's City Council meeting will be rebroadcast on Tulsa's Cox Cable channel 3, starting at 6 a.m. The debate on 71st & Harvard will begin about 6:30 and will run until about 9:30. Tune in: It will give you a chance to evaluate for yourselves the quality of representation you have on the City Council.

I got an e-mail last night from someone considering a run against an incumbent Councilor, asking how to proceed. The time is now to get organized and raise money if you want to make a serious run at it. Filing is in January, the primary is in February, and the general election in March. I'd be happy to provide the benefit of my experience to candidates who are serious about running and serious about serving the public interest with energy and intelligence. E-mail me at blog at batesline dot com. And if you're a registered Republican, contact Chairman Don Burdick at Republican HQ, 627-5702, chairman@tulsagop.org. If you're a Democrat contact Chairman Elaine Dodd at Democrat HQ, 742-2457.

[To keep this from filling the home page, I've put most of this report in the extended entry. Click the link after the next paragraph to read the whole thing.]

Just a quick note to let you all know that the Council approved F&M Bank's zoning application by a 5-4 vote -- Joe Williams, David Patrick, Tom Baker, Art Justis, and Randy Sullivan supported F&M's application and opposed the homeowners -- Chris Medlock, Sam Roop, Bill Christiansen, and Susan Neal voted against. All this despite an effective presentation by Medlock, and effective testimony from neighborhood representatives Mona Miller, Chris Denny, and Kay Bridger Riley, who did as effective a job as I've seen in making their case and remaining calm. (They were only able to speak at Councilor Medlock's behest. The public hearing was held on October 9, and this meeting was a continuance.)

I received word yesterday that the formal protest filed by property owners in the 71st & Harvard area has been rejected as insufficient by INCOG staff, and so a super-majority of the council will not be required to approve the rezoning of the southwest corner of 71st & Harvard. The rezoning case will be before the City Council tomorrow night (Thursday, October 30, 6 p.m.). Neighborhood leaders from across the city should turn out to support our fellow homeowners. You should also e-mail or phone your councilor (distX@tulsacouncil.org, 596-192X, where X is the district number) and register your opposition. You can also e-mail the council secretary at wshott@tulsacouncil.org to send a message to all nine councilors. The meeting will be in the Council chambers, starting at 6 p.m. (The location is marked as number 2 on this map of the Civic Center.)

(Click here, here, here, and here for earlier articles on the rezoning, with links to the application and the planning commission minutes.)

The proposed zoning change is not in accordance with the Comprehensive Plan and sets a precedent for commercial development at totally residential arterial nodes. This precedent could be applied at Midtown intersections like 21st & Peoria, 31st & Peoria, 31st & Lewis, 41st & Lewis. The change also breaks a promise made to area residents when they dropped their lawsuit against the six-laning of 71st Street.

State law and city ordinance provide a safeguard against arbitrary zoning changes. If owners of at least 50% of the lots within 300 feet sign a protest against the change, it requires a 3/4 vote of the council to approve it. That means there must be seven yes votes (abstentions count as if they were votes against).

The neighborhoods near the proposed change have done an excellent job of mobilizing and secured the necessary signatures, but INCOG and the City of Tulsa legal department have been working equally hard to find any technicality to disallow the protest. Today, INCOG land development staffers Wayne Alberty and Jim Dunlap went through the protest petitions and disallowed most of them with the encouragement of Alan Jackere, an attorney for the City of Tulsa. Here are a couple of the reasons used to disallow a protest:

* The property is jointly owned by husband and wife, but only one spouse signed. In one case, the husband's name is still on the deed, but has been dead for several years. That protest was disallowed.

* The property is owned by a trust (a means of avoiding probate), and the owner signed his name, but failed to sign it with the word "trustee".

The homeowners learned that these technicalities might be used and so they filed an amended petition, correcting any nit the lawyers might wish to pick. The amended petition was disallowed on the grounds that it was not filed before the initial TMAPC hearing (back on August 27), but there was a difference of opinion between two City lawyers, with Patrick Boulden saying the petition could be filed prior to the City Council hearing, and Alan Jackere saying it had to be filed prior to the initial TMAPC hearing. The wording in the ordinance (Title 42, Section 1703 E) is very clear that the deadline is three days before the City Council's public hearing.

I am informed that this provision has never been successfully used -- they always find a technicality for rejecting the protest.

So now the question is before the Council. Unfortunately, most of the City Councilors -- Patrick, Baker, Justis, Sullivan, Christiansen, and Neal -- received at least $1,000 in campaign contributions from F&M Bank Board members, and Christiansen is the only one of those six who opposes F&M's rezoning application. (Christiansen has constituents who would be affected by the rezoning, which may explain why he is opposing it despite the contributions.) The other five who got F&M money are said to support the rezoning, but we will find out for sure tonight.

Of the three who did not get funds from F&M -- Medlock, Roop, and Williams -- Medlock has been very supportive of the neighborhoods, working to ensure fair treatment of their protest petition, and leading the opposition to the change. Roop and Williams are also reported to oppose the change.

So it appears that Christiansen, Medlock, Roop, and Williams will oppose the rezoning -- if one more councilor would support the neighborhood, or even abstain, the precedent-setting rezoning would fail.

So please e-mail or phone your councilor, and if possible show up to speak in support of the neighborhood.

The F&M Bank 71st and Harvard rezoning issue is back on the City Council agenda this week. It's on the Urban and Economic Development committee agenda on Tuesday morning at 10 a.m., at which time it's expected that the neighborhood's protest will be certified, requiring approval of the zoning change by seven councilors. The zoning change itself will probably be before the City Council on Thursday night.

I am awaiting confirmed details, but I am told that several of the councilors who support the rezoning received campaign contributions from F&M executives. In doing some research into Savannah's zoning process, I saw this prominent notice, which appears at the top of the planning commission's agenda each week:

The Georgia Conflict of Interest in Zoning Actions Statute (OCGA Chapter 67A) requires disclosure of certain campaign contributions made by applicants for rezoning actions and by opponents to rezoning actions. Contributions or gifts which in aggregate total $250.00 or more if made within the last two years to a member of the Metropolitan Planning Commission, City Council, or County Commission who will act on the request must be disclosed by applicants. Persons who oppose a rezoning request by speaking before these officials, by direct contact with these officials, or in writing to these officials must also disclose such contributions. Disclosure reports must be filed with either the Clerk of Council or the Clerk of the Chatham County Commissioners, as appropriate, by applicants within ten (10) days after the rezoning application is filed and by opponents at least five (5) calendar days prior to the first hearing by the Metropolitan Planning Commission. Failure to comply is a misdemeanor.

This seems a fair way to provide the public with information to evaluate the performance of the councilors. I would hope that any councilor who took a significant amount of campaign money from F&M executives or board members would voluntarily recuse themselves from this decision.

The 71st & Harvard zoning controversy will come before the City Council this Tuesday morning in committee and at the regular Thursday night meeting. By a 7-1 vote, the planning commission (TMAPC) approved a zoning change from residential to light office to accommodate a proposed F&M Bank branch on what is now vacant land. While the bank may not have a detrimental effect on the surrounding neighborhoods, neighboring property owners are concerned that this change would set a precedent for rezoning residential land to commercial even when such a change is out of accord with the Comprehensive Plan.

Nearby property owners are concerned enough to file a formal protest with the City Council. The owners of over 50% of the property within 300 feet of the proposed change have signed on to the protest. By state law and city ordinance, such a protest means that the zoning change must be approved by 3/4 of the City Council (7 members of the 9) in order to be enacted. Three Councilors could block the change. This is a safeguard to protect neighboring property owners from arbitrary zoning changes.

There is a complication with the protest. Guier Woods, which constitutes the majority of the land within 300 feet of the proposed F&M site, is platted as a single lot owned as condominiums. Patrick Boulden in the City Attorney's office has written that the area of Guier Woods can't count toward the 50% unless every owner of every condominium, both husband and wife, sign the protest.

This is a nonsensical interpretation of the law which makes it impossible to mount an effective protest -- unless Guier Woods owners are unanimous (no opposition, no abstentions), 50% cannot be reached, even if the remaining property owners within 300 feet are unanimous in their opposition. While Guier Woods may be a single lot, units are bought and sold separately along with a share of the elements in common (e.g. the gatehouse). Units are also taxed separately by the county. Either the separate units should be treated as separate properties, or else Guier Woods's duly elected board should be able to protest on behalf of the entire development.

To illustrate the absurdity of Boulden's interpretation, imagine that one of the lots was owned by a public corporation -- by his approach, every shareholder of the corporation would have to sign the protest before that lot's area counts toward the 50% requirement.

This Tuesday, Councilor Chris Medlock will be putting forward a proposal to clarify the requirements for filing a protest, in accordance with a common sense interpretation of the state law. Without some clarification, an important safeguard for property owners will be neutralized by a technicality.

UPDATE: The minutes of the planning commission meeting, with details of the proposal and comments from commissioners, attorneys, and interested parties are online here, on pages 2-23.

When you buy a home in the middle of a neighborhood, surrounded by other homes, it's reasonable to expect that you won't wake up some morning to find your neighbor's house gone and a zinc smelter or slaughterhouse being built in its place. People less for a home next door to something busy and noisy, more for homes in quiet neighborhoods. That kind of price differential wouldn't make sense if any parcel could suddenly change to any other use. We have zoning an d planning laws in place to provide for orderly changes in land use, to protect the investment we've made in our property. Our zoning laws aren't perfect, but they ought to be applied evenhandledly. That doesn't appear to be happening in several recent controversial zoning cases that will soon be coming before the City Council.

One case is a proposal to rezone an area around the southeast corner of 41st & Harvard. The current zoning is RM (residential multifamily). As with the proposed F&M Bank at 71st & Harvard, the proposed change to the zoning runs counter to the city's Comprehensive Plan. Once this zoning change is approved, a second zoning change, called a Planned Unit Development (PUD), would combine the existing commercial zoning at the corner (the site of the Christmas tree lot) with the newly rezoned commercial area, plus some areas zoned for offices and single-family residential lots, to create one big commercial lot for a Wal-Mart neighborhood market and gas station.

We had the leaders of the neighborhood groups opposing the zoning change at the Midtown Coalition meeting a couple of weeks ago. They aren't NIMBYs: These homeowners would support commercial and multifamily development in accordance with existing zoning. The zoning change being requested is not in accord with the Comprehensive Plan for the parcels in question and involves a significant increase in intensity of use. They are not reassured by the fact that a PUD will be applied to the site, as they have an example on the NE corner of 41st and Harvard -- promises when the PUD was approved were then broken through amendments some time later.

In layman's terms, these neighbors bought homes that backed up to other homes. The adjoining lots were zoned and designated in the comprehensive plan for residential development. They had no reason to expect a supermarket loading dock across the back fence, and they paid some market-based premium on the basis of that expectation, which was grounded in existing use, zoning, and the Comprehensive Plan.

The key issue in this case and in the 71st and Harvard case, from the perspective of homeowner associations and neighborhood associations is the bypassing of the Comprehensive Plan.

The Comprehensive Plan is meant to give property owners and prospective property owners some degree of predictability. When considering the purchase of a piece of property, I should be able to look at the zoning map and the Comprehensive Plan and know what I am allowed to do with my land and what neighboring property owners are allowed to do, and the range of possible land use changes that may occur in the future.

Comprehensive Plan land use designations (such as "low-intensity residential" or "medium-intensity no specific use") are tied to zoning changes by a matrix which specifies which zoning categories (such as RS, CG, OL) are in conformance, are not in conformance, or which may be in conformance with the land use designation. By restricting the possibilities, property owners can invest with some degree of confidence that their investment will not be undermined either by an arbitrary zoning change or by an arbitrary refusal to grant a zoning change which is in accord with the Comprehensive Plan.

An owner's ability to make rational investment decisions is undermined by the frequent practice of changing the zoning without regard to the Comprehensive Plan, then amending the Comprehensive Plan after the fact to match the new zoning. Rezoning is no longer a matter of following the rules, but often who can hire the cleverest lawyer, or whether the applicant's plans will generate more sales tax and property tax revenue than the current land use.

I have heard it said that the TMAPC is right to ignore the Comprehensive Plan, since it hasn't been updated in ages, and there isn't any money to update it. The counter-argument is that there is no compelling reason for developers to push for a Comprehensive Plan update, because they can get any zoning they want without regard to the plan. (No land-use reforms will be considered by local politicians unless the development community is supportive, so great is its influence over local politics.) This reminds me of Oklahoma's old prohibition against liquor-by-the-drink, a law so often skirted that it was called liquor-by-the-wink. Only strict enforcement of the existing rules created pressure for reasonable reform.

The planning commission recommended approval by a vote of 5-4, and it will soon go before the City Council.