Tulsa Zoning: April 2006 Archives

Tulsa homeowners need to stick together. We've been getting better and better at it, but the easy progress of HB 2559 and SB 1324 through the Oklahoma Legislature proves we've got a long way to go. And just because we've elected a neighborhood-friendly City Council doesn't mean when can let our guard down. We need to be ready to support our elected officials when they do the right thing and ready to nudge them back on track when necessary.

There's one citywide organization devoted to keeping a watch on zoning and planning issues, and it needs your support and participation. Homeowners for Fair Zoning (HFFZ) is holding its annual meeting this Tuesday night at 7 p.m., at the Brookside Library on 45th Place just west of Peoria. The agenda includes an update on the two aforementioned legislative bills and the status of the Citizens' Commission on City Government, which is looking at changes like at-large councilors and non-partisan elections.

Membership in HFFZ is open to Tulsans who share the organization's aims: "Homeowners for Fair Zoning advocates legislation and support for public officials and political candidates who demonstrate a balanced concern for neighborhood residents and fair government."

If you share those goals, I encourage you to attend and to join HFFZ this Tuesday night.

This week's column in Urban Tulsa Weekly is about HB 2559, a bill in the Oklahoma legislature which represents an unwarranted state intrusion on local government control over zoning and land use regulation. (The column also covers the latest BOk Center bids, which put the arena at least $30 million over budget.)

HB 2559 would limit a city's options for handling appeals of decisions made by the city's Board of Adjustment (BoA), which considers variances and special exceptions to zoning requirements. The bill was amended in the State Senate to make it easier to remove historic preservation (HP) zoning from a parcel of land.

Since filing the story, I've learned about a parallel bill which originated in the State Senate called SB 1324. Like HB 2559, SB 1324 is sponsored by Sen. Brian Crain and Rep. Ron Peters. Like HB 2559, it would restrict a city's options for handling BoA appeals. Unlike HB 2558, SB 1324 also grants new powers to a Board of Adjustment:

[The board of adjustment shall have the power to] Hear and decide proposals for accessory elements associated with an allowed building use, where appropriate general performance and design standards have been established which promote greater economic value and provide a harmonious relationship with adjoining land uses by ordinance or by administrative rule or regulation. Such proposals and performance or design standards may include, but are not limited to, such accessory elements as sound, building material, runoff, lighting, visual screening, landscaping and vehicular considerations....

Earlier today I spoke to someone in the Clerk's office of the Oklahoma House of Representatives. My understanding is that HB 2559 is headed for a conference committee, but the conferees have yet to be named. SB 1324, on the other hand, was passed unanimously by the State Senate on March 9 (44-0), and passed unanimously on April 17 by the State House (98-0), but with a very small amendment. If the Senate votes to accept the House amendment, SB 1324 goes to the Governor for his signature. (The House amendment adds the phrase "and subsequent appellate courts" to the section forcing BoA appeals to District Court.) The final vote on SB 1324 is likely to happen this week.

Whatever the merits of BoA appeals and HP regulations, these matters should be handled locally, not dictated from Oklahoma City. Both of these bills should be scrapped.

If you want to make a difference on this bill, you need to contact your State Senator as soon as possible. To find out who represents you in Oklahoma City and how to contact them, click here, input your address, and click "Submit." The result will show you who your representatives are, their district office phone number, and their Capitol office phone number, and e-mail address.

It is amazing that these bills would pass without much opposition. I have to assume that legislators voted for it because they weren't aware of anyone who was against it, not because they had actually studied the measure. The supporters of the bill did a fine job of keeping it quiet so that potential opponents wouldn't be alerted.

It didn't happen this time, but I would hope that in the future, seeing Title 11 (Cities and Towns) on a bill would move legislators to consult with municipal officials in their districts. I would also hope that the City Council would assign a staffer to keep an eye on legislation affecting Title 11. Bills affecting Title 26 (Elections) and Title 60 (Trusts) might also have an impact on City Hall.

With these bills, the Tulsa development lobby seems to have exported our local debate over land use policy to the State Capitol. Until now, Republicans who disagree on local issues have nevertheless been united on state matters like taxation and tort reform. By putting a divisive issue into play at the state level, it may depress grass-roots enthusiasm to help Republican legislators keep the State House and win the State Senate.

I keep thinking that finally we are at the point Tulsa's development lobby will give up on their "rule or ruin" mentality, and will finally sit down with homeowners to work together to build a better Tulsa. They keep losing elections, now that their allies in the media no longer control the flow of information. Isn't it time they gave up on their fantasy of total control and joined in the give-and-take process of governance?

Not yet, evidently. Tuesday's Tulsa City Council committee meeting saw the unveiling of the latest assault of the Build Anything Anywhere (BAA) crowd. Zoning attorney Charles Norman attacked councilors for going to Board of Adjustment (BoA) and Tulsa Metropolitan Area Planning Commission (TMAPC) meetings to speak on behalf of their constituents' concerns. He claims it is a violation of the ethics ordinance for a Councilor to vote on a zoning amendment after having spoken against it in a TMAPC hearing.

Mr. Norman was City Attorney from 1959 to 1968, through the heyday of urban renewal and the establishment of our current use-based zoning code. He left the employ of the city and has spent the last 38 years making a very nice living representing clients before the TMAPC, the BoA, and the City Council on zoning matters.

In the early days of the City Council, when most councilors saw themselves as rubber stamps, hiring Charles Norman to handle your rezoning was a guaranteed win. Councilors would generally defer to Norman's arguments and would ignore counter-arguments made by the opponents of a zoning amendment, who generally could not afford to be represented by a high-priced attorney.

Over the last few years, councilors have taken a more direct interest in zoning issues, and they are often asked to speak at public hearing s on behalf of a neighborhood association in their districts. Often a councilor is more comfortable with public speaking than a neighborhood leader and has more familiarity with the zoning code and process: The councilor sees dozens of zoning cases, while the leaders of a neighborhood association may be encountering the zoning process for the first time.

Norman's complaint seems to boil down to this: Someone is getting knowledgeable and eloquent representation in zoning cases without paying his exorbitant rates.

Norman seems to forget that rezoning a parcel is an amendment of the zoning code, Title 42 of Tulsa Revised Ordinances, and that a zoning amendment is a legislative action, not a judicial action, and not a ministerial action. It involves changing the rules, not enforcing existing rules. It involves the exercise of discretion. In handling zoning amendments, the TMAPC acts as a committee to the City Council, considering and amending proposals before passing them on to the City Council. It makes sense for a councilor to communicate to the TMAPC that a proposed zoning amendment would have his opposition. This gives the applicant and the TMAPC the chance to rework the amendment to make it acceptable.

I hope the Ethics Advisory Committee will see Norman's complaint for the absurdity that it is. If the ethics ordinance can somehow be twisted to make it say what Norman says it does, it needs to be amended to make it clear that councilors can speak at board and commission meetings.

An edited version of this piece was published on April 26, 2006, in Urban Tulsa Weekly. The archived version is no longer online. Posted on the web on August 18, 2010.

It appears that Tulsa's development lobby, discouraged by the results of the Tulsa City Council elections, has decided to take its fight to the next level. Three Tulsa legislators have sponsored a bill that would interfere with local control of Board of Adjustment (BoA) appeals.

The bill, HB 2559, would require all appeals of Board of Adjustment decisions, whether variances or special exceptions, to go to District Court, with the attendant expenses of attorneys and court costs. The BoA can grant a variance to zoning ordinances if a hardship exists. The BoA can grant a special exception to allow certain uses that aren't allowed by right by the zoning of a piece of property.

In the past, Councilor Roscoe Turner and then-Councilor Jim Mautino have argued that certain BoA decisions should be first appealed to the City Council. While the BoA acts as a quasi-judicial body in many cases, in special exception cases it has the discretion to consider subjective matters like neighborhood compatibility. A special exception can have the impact of a zoning change, and neighborhood advocates argue that the City Council should have the opportunity to review such decisions before the courts are involved.

Under current law, Tulsa's City Council could modify our ordinances to tailor the BoA appeals process to balance the concerns of developers and neighboring property owners. HB 2559, sponsored by State Reps. Ron Peters and Jeannie McDaniel and Sen. Brian Crain, would take away this local discretion over the process and would dictate a one-size-fits-all solution for the entire state.

HB 2559 passed the House on March 8 and passed the Senate on April 19. Because the House "struck the title," the bill must go back to the House for one more vote before it can go to the Governor's desk. All of Tulsa's state representatives and all but two of our state senators supported the measure. (Republican Senators Randy Brogdon and Scott Pruitt voted against.)

An amendment to the bill that would have interfered with local control over historic preservation (HP) overlay zoning was also considered by the State Senate on April 19, but it failed by a 21-24 vote. Of Tulsa's senators, only Judy Eason-McEntyre voted yes.

Five historic Tulsa neighborhoods (and the park around the Council Oak) have special protection under Tulsa's zoning code. Exterior modifications and new construction within an HP zoning district need a certificate of appropriateness from the Tulsa Preservation Commission (TPC) before proceeding, to ensure that the historic character of the neighborhood is maintained. Demolition permits can be delayed for up to 60 days.

HP protection serves the same value-protecting purpose that deed restrictions serve in newer subdivisions. If you buy a home in an HP neighborhood, you can invest in maintaining your home to historic standards with the assurance that your neighbors are subject to the same rules.

But the protection is undermined if someone can easily buy a property in an HP-zoned neighborhood and have it removed from the district. The failed amendment to HB 2559 would have cut the TPC and the Tulsa Metropolitan Area Planning Commission (TMAPC) completely out of the process of removing lots from an HP district.

In contrast, the process of creating an HP district or expanding its boundaries requires a great deal of time, historical research, and public input. As a rule of thumb, HP districts need the support of 80% of property owners in the district to move forward through three separate levels of review. Removing a property from the district ought to require a similar high standard of review.

Tulsa's development lobby is used to getting its way 100%. Rather than sitting down with other Tulsans to develop a land-use system that will serve the needs of everyone, they have tried and failed to recall two councilors from office, tried and failed to dismember three City Council districts and replace them with citywide supercouncilor seats, and tried and failed to pack the Council with people they can control. In a move akin to plugging your ears with your fingers and singing "The Star-Spangled Banner," they excluded then-Councilor Chris Medlock from their mayoral candidate forum.

I was hopeful when I learned of the departure earlier this year of Josh Fowler from his post as the Home Builders Association of Greater Tulsa's executive director. I was hopeful that the development lobby had finally recognized that the pit bull tactics he epitomized were no longer working. I was hopeful that the developers were ready to take a more conciliatory approach to public policy. This legislative end-around shows that my hopes weren't well-founded.

Frustrated by the fact that ordinary Tulsans are paying attention to City Hall, Tulsa's development lobby is now trying to dictate local land-use policy from Oklahoma City. Whatever the merits of BoA appeals or of moving parcels in and out of HP districts, those are local matters that should be settled locally.

We need to let our state legislators know that HB 2559 is unacceptable. Homeowners and other property owners should object to local decisions being made a hundred miles away, where it's harder to keep an eye on things. Our City Council and municipal officials across the state ought to object loudly to this infringement on their prerogatives.

In his 2000 campaign book, A Charge to Keep, George W. Bush wrote that he is a conservative because he believes that government closest to the people governs best. I expect to see my fellow Republicans at the State Capitol uphold this fundamental Republican principle, and I expect them to defeat HB 2559 when it comes back to the State House of Representatives for a final vote.

In other City Hall news:

Last Friday the latest round of bids on subcontracts for the construction of the BOk Center were opened.

This was after a two-week delay to give bidders "more preparation time," according a report to the Tulsa World. Despite reassurances that all was well, there was good reason to assume that the delay was because of concerns that bids were coming in way over budget.

As it turned out, the lowest bids on each item exceeded budget by $32 million, about a 50% overage. The total of all five bid packages, plus the cost of land acquisition, plus the amount paid for architectural, project management, and other professional services comes to just shy of $150 million. The remaining bid packages are budgeted at around $30 million, which would bring the total for the arena alone to $180 million.

Remember that the Vision 2025 package allocated $183 million of that sales tax to pay for both the construction of an arena and improvements to the Convention Center, including the conversion of the existing arena into ballroom space. It looks like we won't have anything left to fix the facility that, we have been told again and again, is crucial to bringing outside dollars into the local economy.

When Councilor Chris Medlock raised concerns last fall about money being shifted from the Convention Center to the arena, he was shouted down by the monopoly daily paper and even by members of the overview committee who are supposedly keeping an eye on project finances on behalf of us taxpayers.

Back during the mayoral campaign, Democratic candidate Don McCorkell said he would stop work on the arena in order to get a handle on how much the facility would cost to complete and how much it would cost to operate and maintain. If the cost is going to exceed the budget by a wide margin, Tulsa's voters ought to decide whether or not it's worth proceeding. McCorkell's idea looks better all the time.

The fact that we've already put tens of millions into the arena doesn't mean it makes sense to throw good money after bad. (See "sunk costs, fallacy of.")

Meanwhile, County Commissioner Randi Miller, who had been mum about potential overages, not wanting to jeopardize renewal of the County's 4-to-Fix-Tax, now seems to be trying to recast herself as a taxpayer watchdog.

Some of us can remember when she was asked by Republican leaders, back in 2003, to make the arena a separate item on the Vision 2025 ballot, to give the voters a clear opportunity to vote against the arena without having to vote against the higher education improvements that were tied with it.

Miller stood by and did nothing at the time. She continued to go along to get along, voting with the other commissioners to sole-source the Vision 2025 financial contracts to favored vendors. After Vision 2025 was approved, when Medlock raised concerns about oversight and governance, Miller was silent.

On the other hand, Miller was more than happy, back on March 20, to grant a Murphy Brothers a 10-year exclusive contract to operate the Tulsa State Fair midway, despite complaints about rising prices and declining quality of the Murphy Brothers operation. The midway contract was not put out for competitive bids. Miller's support for the sweetheart deal with Murphy Brothers came after her mayoral campaign received a $5,000 contribution from Loretta Murphy, wife of Murphy Brothers owner Jerry Murphy.

Medlock, a genuine taxpayer watchdog, is continuing to keep an eye on arena expenditures at his blog, medblogged.blogspot.com.

There's a bill making its way through the Oklahoma Legislature which would take away a degree of local control over land-use regulation.

HB 2559 appears to represent a new line of attack by Tulsa's development lobby, which lost control of the City Council in 2004, failed in their attempt to regain control by means of the recall of Chris Medlock and Jim Mautino in 2005, and failed to regain control in this year's election.

The previous Council wasn't anti-growth or anti-development, nor is the new Council, but they were and are devoted to making the land-use process fair to all concerned, homeowners as well as developers, and to putting Tulsa's interests first, ahead of the suburbs. This is frustrating to the development lobby, which was used to getting its way all the time. Since they can't control local officials any more, they are using allies in the State Legislature to limit, restrict, and interfere with the ability of local officials to set zoning policy.

HB 2559 would require any appeals from a Board of Adjustment to go directly to District Court. This would prevent the City of Tulsa from allowing certain appeals to go first to the City Council, an idea that Councilor Roscoe Turner and then-Councilor Jim Mautino have advocated.

While the BoA acts as a quasi-judicial body on cases involving variances, in other cases, involving special exceptions, they have a good deal of discretion to consider issues like neighborhood compatibility. When the subjective element is present, when neighborhood compatibility is under consideration, it seems reasonable to allow the losing side on such a case to seek review by the City Council before lawyers and legal fees are involved.

But whatever the merits of the idea, HB 2559 would prevent Tulsa from even considering it. It is an unwarranted interference in local control of local issues, and such a bill should never pass a Republican-controlled legislative body, since Republicans believe that government closest to the people governs best.

But it did pass. It passed the State House on March 8 by an overwhelming margin. The Senate Judiciary Committee then added an amendment that would make it easier to remove property from a Historic Preservation (HP) overlay zoning district, another bit of unnecessary meddling in local control of local matters. The Senate passed the amended bill last Wednesday, April 19. It now goes back to the State House.

The bill is sponsored by Ron Peters (R) and Jeannie McDaniel (D) in the House and by Brian Crain (R) in the Senate. I am not sure who is responsible for adding the HP amendment in the Senate.

If you object to this attempt by the development lobby to bypass City Hall and to dictate local land-use policy at the State Capitol, you need to let your state representatives know as soon as possible. The toll-free number for the State House is 1-800-522-8502. And here is an alphabetical list of members' names and e-mail addresses.

Here's the text of HB 2559 as passed by the House. Here's the version that was approved by the Senate, with the amendment concerning HP zoning.

... or if I at least ruled the TMAPC, here's what land use regulation (aka zoning) in Tulsa would be like, as summarized in my column in this issue of Urban Tulsa Weekly. The Tulsa Whirled editorial board wrote that if I ever was appointed to the TMAPC, "the city might as well erect billboards at the edges of the city instructing developers to just keep on moving to the suburbs." Here's what I wrote in response:

I don’t expect I’ll ever be named to the TMAPC, much less be named the Pope of Planning, but if it were to happen, the City of Tulsa should erect billboards at the city limits saying, “Tulsa offers a fair, transparent, and up-to-date land-use system that maximizes freedom while protecting the investments of all property owners and our city’s quality of life. Tulsa welcomes developers who will work with us to build a better Tulsa.”

Click the link above, and read the five characteristics that a Michael Bates-designed planning system would have.

(Added on September 30, 2006, to fill in the gaps in my Urban Tulsa Weekly column archive.)

Something Bill LaFortune deserves, but hasn't received, credit for, is reshaping the city's Board of Adjustment (BOA). The BOA is a quasi-judicial body that is authorized to grant variances from the regulations of the zoning code. The BOA also considers requests for special exceptions, where the zoning code allows a certain use in a certain set of circumstances, but the BOA must weigh neighborhood compatibility before granting the exception.

A variance is only supposed to be granted if a hardship exists -- something about the arrangement land and buildings that would result in an absurd situation if the zoning laws were strictly applied. A hardship can't be self-imposed and can't be economic in nature. By state law, the BOA can't grant "use variances" -- for example, they can't authorize the use of a house for a restaurant in a residentially-zoned area.

Until recently, variances were routinely granted in cases that lacked a legitimate hardship. I remember a case where an outbuilding was approved when it greatly exceeded the zoning code's limits on accessory building size. The BOA found the hardship to be that the lot was large.

Mayor LaFortune's three appointments to the BOA -- Clayda Stead, Frazier Henke, and Michael Tidwell -- have taken a strict approach to granting variances. They understand that, while they may think something should be permitted that isn't, it isn't their place to legislate from the bench.

Council pressure played an important role in the new appointments. Some councilors made it clear that they wouldn't support the reappointment of certain BOA members. In this case, at least, LaFortune respected the Council's wishes and sent down new names.

One final note: I have a great deal of respect for David White, one of the BOA members who was replaced by LaFortune. Although I didn't agree with his approach to the variance issue, I appreciated his fairness, integrity, and availability to answer questions. Dave regularly attended meetings of the Midtown Coalition of Neighborhood Associations, often right after the conclusion of marathon BOA hearings, and was willing to explain his rationale on controversial decisions and to help us understand factors, such as court decisions and federal law, which the BOA has to weigh alongside the text of the zoning code.