Tulsa Zoning: December 2003 Archives

A reminder: The lawsuit for fairness in zoning cases is going forward, and your help is needed for the suit to succeed. Donations are needed to cover legal costs, and volunteer help is needed to handle a variety of details. To donate to the cause, write a check to Zoning Alert Watchman Committee, and mail it to:

Ms. Mona Miller
7211 South Gary Place
Tulsa, OK. 74136

On the political front, we are still looking for good candidates to run in many of the City Council districts, and the filing period is just two weeks away. Good candidates who are already in the race, like Councilor Chris Medlock, former Councilor Roscoe Turner, and John Eagleton, will need a lot of volunteer help and financial help to prevail.

To help make the case to the broader public, I'd like to collect stories of problems with the zoning and planning process in Tulsa. Whether you were an applicant or protesting an application, if you experienced a situation that seemed unfair or absurd, please drop me a line at blog at batesline dot com and tell me all about it. Please include as many specific details as you can, particularly the location involved, the date of key hearings or events, and the case number, zoning number, or PUD number as appropriate. And let me know if I can use your name, or if you'd prefer to remain anonymous. Real-life experiences can help make the case for reform better than dry analyses. Thanks for your help.

I don't have the energy at this late hour to take apart Janet Pearson's condescending, simplistic, and one-sided column in Sunday's Whirled about zoning controversies. The column is little more than a dressed-up presentation of the views of Jerry Lasker, director of the Indian Nations Council of Governments (INCOG), whose planning staff were behind the successful (and unlawful) effort to invalidate the protest petition against the rezoning of 71st and Harvard.

It's apparent she only has second-hand knowledge of neighborhood complaints about Tulsa's zoning process, filtered through the perspective of the people who run the zoning process and are quite pleased with it. Her treatment of the subject would have benefitted from some conversation with actual neighborhood leaders like Brookside's Nancy Apgar, Mona Miller from 71st & Harvard, or Maria Barnes from Kendall-Whittier.

Here are a few excerpts and my comments:

Few happenings at City Hall generate more controversy than zoning cases. Each year there are usually several big zoning fights, as well as countless smaller ones that don't make headlines but still make enemies.

Several recent cases -- notably the Wal-Mart grocery store proposal for 41st Street and Harvard Avenue -- are cases in point.

Interesting that 71st & Harvard doesn't get an explicit mention. Could it be because the rezoning benefitted a company with close connections to her employer?

Residents have a good point: Developers and their representatives usually do have the upper hand because of their experience and superior knowledge of the zoning process.

No, Janet, real residents will tell you that developers have the upper hand because the system is slanted in the developer's favor. The 71st & Harvard neighbors demonstrated a sophisticated awareness of the zoning process when they presented a protest petition to the City Council, which under the law raises the bar to require supermajority approval for rezoning. INCOG staff and the City Attorney's office responded to this "superior knowledge" by changing the rules to invalidate their petition.

But homeowners could improve their chances of altering proposals and even prevailing in the end by doing a little homework. In the Wal-Mart case, it was evident some had done their research.

The subtext here: "The system is just fine. Neighborhoods can prevail, if they will only do their homework. The 71st & Harvard neighbors lost, not because of a slanted system, but because they didn't do their homework. Poor stupid neighbors."

Study of land-use issues should begin even before buying property. "If you're looking to buy a house, look at the neighborhood. Look at the zoning in the area. Go to the planning commission office to see if there are uses other than residential approved for the area," recommends Jerry Lasker, director of the area planning agency INCOG, which includes the local zoning department, the Tulsa Metropolitan Area Planning Commission....

"Also, look at what's across the street," he continues. If there is more intense development -- busy commercial or retail businesses, for example -- nearby, then there is a good chance pressure will grow in that area for more such development to occur.

Homeowners would do themselves a favor if they familiarize themselves with two important documents: the comprehensive plan and the development guidelines. There are other documents that are valuable to review also: protective covenants, subdivision plats, even the zoning code itself.

All the "homework" that Pearson recommends (really Lasker through her) was done by people in the 71st & Harvard area. They looked at the existing zoning -- residential. The looked at the comprehensive plan -- low-intensity residential. They looked at nearby development -- all residential for at least a mile in each direction. Previous proposals for commercial development had been turned down. The neighbors had good reason to expect that the site would remain residential. None of it mattered, because power trumps law when it comes to land use regulation in Tulsa.

That's enough for now -- but there's plenty more to rebut. Lasker defends the practice of ignoring the Comprehensive Plan, rather than amending it to reflect changing conditions, and says that infill development doesn't have to be consistent with existing development -- in fact you should expect it to be inconsistent and more intensive. Lasker even tries to wrap INCOG's policies with the mantle of "smart growth".

The more I mull it over, the more this column looks like damage control, trying to paper over the serious issues raised by the 71st & Harvard case, trying to take the wind out of the sails of efforts to challenge the current stacked zoning process in the courts and at the ballot box. If you haven't yet, go back and read my entry on the lawsuit, with excerpts and a link to the full text, and be amazed at the creative efforts expended to deny property owners due process.

I was out of town last Thursday when the Council finally considered the 41st & Harvard rezoning request for turning a residentially zoned area into a Wal-Mart neighborhood market. (Whirled coverage begins here, continues here.) This was yet another case where the INCOG planning staff and the Planning Commission recommended a zoning change out of accord with the Comprehensive Plan. The fundamental issue here is not whether or not Wal-Mart is a good company, but, as in the 71st & Harvard and Bell's cases, whether the Comprehensive Plan is a worthless document or a way of ensuring orderly development and redevelopment, protecting property owners against arbitrary and capricious zoning.

In the end, the Council (all but David Patrick) did the right thing by voting this down 8-1, but in doing so, several of them reversed themselves on the principles that guided their 71st & Harvard decision. In the earlier case, Councilor Tom Baker claimed that it wasn't his place to question the judgment of INCOG's planning professionals or the volunteers who serve on the planning commission. But in voting against Wal-Mart, Baker went against both groups, who recommended approval.

In the short time I've been back, I haven't had time to watch the tape yet, but it will be interesting to see how some of the Councilors justify this flip-flop. Perhaps Wal-Mart needs to do a better job of spreading money around during campaign season. Wal-Mart may have grounds for a lawsuit.

I'm pleased the Council voted as they did, but I don't think they deserve a lot of praise for their decision. This should have been a slam dunk. It never should have gotten past INCOG's zoning staffers, much less the TMAPC, and the fact that it did should raise questions about the people serving in those capacities.

Tulsa's land use planning system is still broken, but even a broken clock is right twice a day.

In the midst of preparing for the citywide rally for fair zoning last Monday, there was news in the Bell's roller coaster case (jump page here) which was discouraging at first glance. The Oklahoma Court of Civil Appeals reversed last year's District Court ruling in the neighborhoods' favor, but it appears that the Appeals Court slipped on a couple of points, and there is still good reason to believe that the neighborhoods will prevail.

The Bell's case is another zoning-related lawsuit which arose because the zoning authorities ignored the law in favor of a powerful special interest, in this case the County Commission's desire to make more revenue from Expo Square regardless of the impact on surrounding property owners. At stake is whether the Comprehensive Plan represents a commitment on which property owners can depend, or just a load of promises not worth the paper they're printed on.

A quick recap: Back in December 2000, the Tulsa County Public Facilities Authority (aka the Fair Board, consisting of the three county commissioners and county cronies Jim Orbison and Bob Parmele) granted Bell's a new lease which would allow Bell's to expand west of the park all the way to Louisville Avenue, and make it possible for them to build a new 100 foot roller coaster just west of Zingo. Although concerned neighbors proposed several alternatives that would allow Bell's to expand into the interior of the Fairgrounds, away from residential areas, the Fair Board ignored the concerns and approved the lease. The discovery that part of the land actually belonged to and was in the city limits of Tulsa (a water tower used to stand there, on one of the highest points in Midtown) forced Bell's to redesign the coaster to fit within county-owned land. In September 2001 Bell's announced that the redesigned coaster would go 12 feet underground, and except for the 88-foot-high peaks, much of the coaster would be underground or enclosed to mitigate noise. In October 2001, the Tulsa County Board of Adjustment (whose members were appointed by the County Commissioners) voted 3-2 to grant a special exception, required to allow a roller coaster to be constructed on agriculturally-zoned land. (The Tulsa County BOA had jurisdiction because the Fairgrounds is not within the corporate limits of the City of Tulsa.)

Neighboring homeowners immediately appealed the decision in district court, and in August 2002 Judge David Peterson granted summary judgment in favor of the neighbors. Both sides agreed that the land was designated in the Comprehensive Plan for low-intensity use, and that a roller coaster could not be considered a low-intensity use. Judge Peterson pointed to Oklahoma Statutes and case law which require BOAs to comply with the Comprehensive Plan in granting or rejecting special exceptions and variances.

I wrote about the case back in June 2003, when Bell's attorney Roy Johnsen finally appealed the summary judgment. On December 9th the Court of Civil Appeals reversed the summary judgment, which means that the case will be returned to district court for a full hearing before the judge.

From the newspaper story, it appeared that the Appeals Court was rejecting the notion that the Comprehensive Plan must guide Board of Adjustment decisions, even though a couple of Oklahoma Supreme Court rulings have established that principle, based on the state statutes governing county zoning. But I later learned that the Appeals Court may have misinterpreted some of the information presented to the District Court. In addition, the statute on which Judge Peterson relied in his ruling was not addressed by the Appeals Court at all.

The homeowners have several possibilities before them which would allow them ultimately to prevail. They are in the capable hands of zoning attorney Randall Pickard. I would love to see this go on to the state Supreme Court -- this case and the 71st & Harvard case would demolish the notion, which seems to be conventional wisdom among INCOG planning staff, planning commissioners, and most of the City Councilors, that there are no limits on their discretion to change zoning.

By the way, the Mid-Town Neighborhood Alliance, which was formed to fight the special exception, is still in need of funds to handle legal costs. You can find an appeal letter here and a contribution form and instructions here. Even if you don't live in the area, this group is fighting for your rights as property owners, and they deserve your support.

A petition was filed Thursday in district court regarding the rezoning of 71st & Harvard and the unlawful invalidation of the homeowners' protest petition. The zoning protest process -- designed to protect property owners against rezoning that threatens the value of their property -- is the focus of the lawsuit, not so much the rezoning itself. As Mona Miller, a leader of the homeowners' group, has said, if the process had been fair when the rezoning was approved, they would have been disappointed but would have accepted the result.

INCOG staff and staff from the City Attorney's office went to great lengths to ensure that the homeowners' petition would not succeed. Lest you think these homeowners are just sore losers, you need to read the chronicle of unfair treatment contained in the petition, which is on the web in PDF format, courtesy homemyhome.com. In the extended part of the entry, I'll include excerpts from the petition, but the petition itself is 19 double-spaced pages, an easy read, and will give you a complete understanding of the issues.

With that here are some excerpts:

As expected, the City Council voted to approve Councilor Randy Sullivan's resolution to have the TMAPC study ways to keep the rezoning of 71st & Harvard's southwest corner from setting a precedent for similar rezoning on the other three corners. The item was discussed in committee, but added last minute to Thursday night's agenda. I got word of the meeting late that afternoon. Neighborhood activist Herb Beattie and I spoke to the Council.

I laid out the points I mentioned here in a previous entry, and added this point. There is no way the Council can avoid setting a precedent for the other corners. Its approval of the F & M Bank rezoning has already set a precedent. Suppose a developer applies for a zoning change to the northeast corner to build an office building of similar size to the F & M facility. If the TMAPC or Council rejects that rezoning, the applicant is sure to take the matter to district court and is sure to win his case against the city. Approving an office rezoning on one corner and not an another would clearly be regarded as "arbitrary and capricious", and the court would reverse the decision. The big campaign contributions given by F & M board members to councilors would be an issue in the case -- the clear motive for granting special consideration to one rezoning applicant.

I was pleased to see that my soundbite made the Whirled's coverage. I called the resolution "a cynical exercise in political posterior coverage."

Herb Beattie spoke next, calling the proposal meaningless and saying that it missed the point. If the councilors really wanted to understand the concerns of homeowners, they should attend Monday night's neighborhood rally, 6 p.m., at Wright Elementary School.

In the end, the council voted 7-1 (Williams was absent) to approve the meaningless measure. Randy Sullivan said his motive wasn't political, he just wanted to protect the neighborhood. (Of course, he didn't support neighborhood protection when it really mattered.) Councilor Susan Neal couldn't see the harm in passing the resolution. I offered to explain, but she wasn't interested. Sam Roop agreed with Herb that the resolution was meaningless, but said he would end up voting for it anyway.

That left Chris Medlock, bravely standing alone on principal, refused to go along with this sham, although he didn't say anything as undiplomatic as that. He deserves the enthusiastic support of homeowners across Tulsa in his re-election bid.

I hope you're making plans to join us Monday night at Wright. Doors open at 5, there's a press conference at 5:30, and the rally proper at 6. Attorney Louis Bullock and neighborhood leader Mona Miller will be speaking -- and I'll get to say a few words as well. Be there, invite your friends, and let the powers-that-be understand that Tulsa homeowners expect fair treatment in the zoning process. Let's demonstrate our strength with our numbers.

Saw the following recent post (about halfway down) by Keith Mooney in one of the Tulsa Now forums:

After being out of town for a few months, I was really disappointed to see that generic looking McDonald's being built on the sw corner of cherry and peoria. What nimron allowed that to happen? It totally disgraces the character of the neighborhood. Who allowed that to happen? Whoever it was, they were on some sort of sedative when they allowed that plan to go through. It's not that I'm annoyed that is was a McDonald's, but surely someone could have designed a McDonald's that would have blended in with the neighborhood, although we have the Whataburger and Long John's across the street that are eyesores just as well. But still, Cherry Street could be so much nicer if we had developers who would keep in mind the integrity and architecture of that corner. To the poster who posted that Cherry Street and Brookside are lost causes, well I disagree. These are small neighborhoods, not mega entertainment districts (i.e. OKC's Bricktown or Dallas' WestEnd), But surely from now on, we need to be more stringent as a city regarding architectural and aesthetic developments being constructed in these otherwise charming neighborhoods. But that McDonalds is a total waste of space and sticks out like a sore thumb.

Many people have expressed surprise that a garden-variety McDonald's could be built in a historic, traditional, pedestrian-oriented shopping district, next to two historic neighborhoods. Folks who have visited historic districts elsewhere have seen chain stores and restaurants redesigned to fit in with the existing architecture, and they are surprised that that doesn't seem to happen here. I remember on a trip to Germany finding Mickey D's in the heart of Rothenburg ob der Tauber, a beautifully preserved walled city. But the McDonald's, right on the market square, was in a historic building, with signage adjusted so it didn't stand out like a sore thumb. (No drive-thru, of course.)

At 15th & Peoria, you could have had a lot worse than McDonald's, by right. You could have a giant windowless metal barn topped by an enormous sign, because the parcel is zoned CH -- commercial high-intensity. CH zoning was applied to most of the shopping districts in Midtown, even though high-intensity is not an apt description for the small shops and cafes you find in this areas.

Other cities expect better and they get it, because they set their expectations in writing, in the form of design requirements. Design requirements are used in residential and commercial areas to maintain the character of an area, without imposing the more stringent standards of historic preservation. Design requirements are a component of "neighborhood conservation" or "urban conservation" ordinances. Oklahoma City, Dallas, Fort Worth, Little Rock are just a few among many cities in our region and nationally which have enabled the creation of conservation districts.

Meanwhile, Tulsa lags behind. Conservation districts were considered by Mayor Savage's 1999 Infill Task Force. INCOG planning staffers even had a draft neighborhood conservation district ordinance for the task force to consider. In the end, the concept was watered down by the members of the development community who dominated the task force. I recall one developer saying that national chains would not want to locate in Tulsa if we imposed any sort of design requirements. This is baloney -- as the experience of other cities demonstrates -- and it reveals a lack of confidence in Tulsa's desirability. If a company wants to target a given neighborhood because of its demographics and spending patterns, they will be willing to adapt to meet the requirements for the location they want. It is certain that they will build their cookie-cutter standard design, unless there is some requirement to do otherwise.

Here is a page that tracks news stories about urban design guidelines.

Mark your calendars for 5:30 p.m. next Monday evening, for a citywide rally in support of fair zoning. It will be a chance for ordinary Tulsans show their opposition to the manipulations used recently to deprive property owners of their right to protest a zoning change.

The politicians would like to think we don't care about this issue -- we don't care enough to fight the issue in court or at the ballot box. Let's show them they're wrong.

The rally will be at Wright Elementary School, on 45th Place west of Peoria. Doors open at 5, with the meeting beginning with a press conference at 5:30, followed by a few speeches.

This next city election, less than two months away, ought to be about development and zoning issues. These issues are crucial to our quality of life and our city's future. We shouldn't let the big shots keep these issues out of the spotlight. Please join us on December 15.

A 71st & Harvard update: There is a move afoot to mollify the protesting homeowners, avert a lawsuit, avoid negative publicity for F&M Bank, and diffuse a mounting political backlash against the six councilors (Sullivan, Baker, Patrick, Justis, Williams, and Neal) who voted to discard the homeowners' lawfully submitted protest petition.

District 7 Councilor Randy Sullivan, F&M's point man on the City Council, is shopping a proposal to provide some assurance to the homeowners that F&M's zoning change will not set a precedent for similar residential-to-non-residential changes on the other three corners of that intersection. What he is offering amounts to a band-aid to heal a stab wound that he inflicted.

A resolution was on the Council agenda last Thursday night, brought forth by Sullivan without any prior consultation with Councilor Chris Medlock, who represents most of the affected area. Click the "read more" link for the full text and commentary.

A shot across the bow of the City from 71st & Harvard homeowners, via their attorney, Louis Bullock. The next to last paragraph is a great summary of the case:

The lawsuit soon to be filed will also seek remedies for the City's violation of the Constitution of the United States. In violation of the due process clause of the Constitution, my clients were denied a hearing or any semblance of fundamental fairness. The rules of the process were continually changed to fit the goals of F&M Bank and its supporters in City government. The clear objective of a majority on the City Council was to deny these citizens their right to fairness and to petition their government; they acheived that objective. In short, my clients were steamrolled to serve narrow economic and political interests.

This is an issue that has already affected homeowners in many parts of the city, and anyone could find themselves in the same situation -- seeking fair treatment from the City and being denied. (You can find out how to help by clicking here. The neighborhood you save may be your own.)

You can read the whole letter by clicking the next link.

The neighborhoods surrounding 71st & Harvard are going forward with a lawsuit regarding the way their zoning protest petition was handled by INCOG planning staff, the City Attorney's office, the City Council, and the Mayor. This lawsuit is not really about the zoning case itself, but about the way this protective law has been stripped away, denying due process to all property owners. Here's a message from the homeowners, seeking your help in restoring this protection for your property values.

Due to the re-zoning of 71 and Harvard and the unfair and illegal handling of protest signatures, we are appealing to District Court to consider Equal Rights for Homeowners. The actions of various entities clearly subverted the intent, as well as the letter of state law that allows for homeowners the right to protest such matters. The people's distress goes far beyond the zoning change. There is an outrage over the basic loss of the right to petition. If enough people will pull together, we will be able to cover the legal costs without putting the burden on just a few. Already we have four lawyers who are donating their time to this lawsuit. If you agree with the value of this lawsuit, please help by donating whatever amount is comfortable. Checks need to be written to: Zoning Alert Watchman Committee Please mail to:

Ms. Mona Miller
7211 South Gary Place
Tulsa, OK. 74136

Need more information? Call Mona at 492-1481

Thank you, in advance, for your help.

Remember - your neighborhood or your corner could be next. We need to protect this basic right to express opposition.