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August 31, 2004
Summary Judgement in HFFZ vs. City of Tulsa and F&M Bank
I received the following e-mail this evening from Mona Miller, President of Homeowner's for Fair Zoning. The LCNA Executive Committee was discussing this issue earlier this evening as well as our very own zoning issue at 51st & Atlanta Ave. Homeowners for Fair Zoning filed this lawsuit December 18, 2003 and they are just now able to get a Summary Judgment on the case... So if you think our zoning problem will be resolved any time soon... well you get the picture.
Dear Lewis Crest Friends and Supporters;
Needless to say I'm disappointed in Judge Gassett's ruling because it affects me directly as a homeowner in the City of Tulsa. I'm sure Mona and the HFFZ "Gang of Many" aren't too happy about the ruling either. Every day this drags out relates to more dollars expended by individuals. Unfortunately this is probably the plan.... drag this out until it becomes too expensive for the average citizen to keep up the fight.
Judge Gassett ruled today in favor of F&M Bank and the City of Tulsa saying we did not have the right to protest zoning matters resulting in a super majority vote of the City Council.
While we respect Judge Gassett's opinion, we strongly disagree. The State Statute supersedes the city ordinance in our Attorney's opinion and we will appeal to either the Appellate Court or the Supreme Court. In the meanwhile the construction of the bank will be held up until a final decision is made.
Again, Thanks for all your support!
Mona Miller
It's late and my mind is wandering, but I'm sitting here thinking about all the stories that have been in the collective News this year regarding zoning problems.... 51st & Harvard, 71st & Harvard, 41st & Harvard, 51st & S. Atlanta Ave, and the recent stories about the Denver Grill and the new arena. I've just about come to the conclusion that if you're an "ordinary" homeowner that doesn't have influential contacts, your rights are dwindled to almost nothing.
Here are the State Statutes and the City Ordinances revisited. I personally think it's fairly simple, but I'm just an ordinary homeowner with an extremely long memory when it comes to election time! If your disappointed in the ruling, make sure your voice is heard by writing, emailing, or calling your City Councilor. The Tulsa City Council website has all the information needed to contact your Councilor.
Oklahoma Statutes Citationized
Title 11. Cities and Towns
Chapter 1
Municipal Code
Article XLIII
Section 43-105 - Amendments or Changes of Regulations, Restrictions and Boundaries - Protests
Cite as: O.S. §, __ __
A. Regulations, restrictions and district boundaries of municipalities may be amended, supplemented, changed, modified or repealed. The requirements of Section 11- 43-104 of this title on public hearings and notice shall apply to all proposed amendments or changes to regulations, restrictions or district boundaries.
B. Protests against proposed changes shall be filed at least three (3) days before the date of the public hearings. If protests are filed by:
1. the owners of twenty percent (20%) or more of the area of the lots included in a proposed change, or
2. the owners of fifty percent (50%) or more of the area of the lots within a three hundred (300) foot radius of the exterior boundary of the territory included in a proposed change; then the proposed change or amendment shall not become effective except by the favorable vote of three-fourths of all the members of the municipal governing body where there are more than seven members in the governing body, and by three-fifths favorable vote where there are seven or less members in the governing body.
Historical Data
Added by Laws 1977, HB 1100, c. 256, § 43-105, eff. July 1, 1978.City of Tulsa
Title 42 Chapter 17
E. City Council Action on Zoning Map Amendments. 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. Prior to the hearing on the proposed rezoning ordinance before the City Council, the applicant shall remit to the office of the City Clerk a publication fee, said fee to be in accordance with the schedule of fees adopted by resolution of the City Council of the City of Tulsa. In case of a protest against such zoning change filed at least three days prior to said public hearing by the owners of 20% or more of the area of the lots included in such proposed change, or 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.Ord. Nos. 17689, 18465, 18641
Posted by webmaster at 10:58 PM
HFFZ Update - Please Read!
Here's the "down and dirty" of the summary judgement hearing that took place on August 26th. Please Note: The time for the next hearing has been changed from 11:00 am to 4:00 pm on August 31st (Tuesday) in the same court room. Show your support if your able too!
On August 26th, a hearing was held before District Judge Michael Gassett on the Defendants’ motions for summary judgment in the civil rights lawsuit known as Homeowners for Fair Zoning vs. The City of Tulsa and F & M Bank.
The issue before the court was whether the Plaintiffs should be allowed to go to trial on their claims for violations of their constitutional right to due process of law in connection with the zoning protests filed under Section 1703(E) of Chapter 42 of the City’s zoning code (the “zoning protest ordinance”).
The City and Bank argued that their motions should be granted because they believe that (1) there is a conflict between the City Charter and the zoning protest ordinance’s requirement of higher than a simple majority vote by the City Council and (2) the City’s zoning ordinances and the City Council’s decisions related to them should be considered a matter of only local concern which should not involve full due process requirements or review by the District Court of any aspect of the decision beyond a standard of whether the action was completely “arbitrary and capricious”.The Plaintiffs were represented by Lou Bullock, Bob Blakemore and John S. Denney. In their briefs filed prior to the hearing, Plaintiffs’ counsel responded to these arguments with extensive citations of authority and a large list of factual issues in dispute which should be determined by the Court at a trial on the merits. At the hearing, Plaintiffs’ counsel presented an abbreviated form of argument preferred by the Court since Judge Gassett had already closely read the briefs. In response to the Defendants’ argument that there is a conflict between the City Charter and the zoning protest ordinance on the issue of whether greater than a simple majority vote can be required in a zoning case when an appropriate number of protests are filed, Mr. Bullock pointed out that, despite being in effect for over 30 years, the City had never chosen to challenge the validity of its own ordinance and did not do so during the rezoning proceedings themselves. It was only upon being sued for civil rights violations that it took the unusual step of declaring that the City Charter’s requirement of a majority vote in zoning cases meant a ‘simple majority’ only and that any higher level vote requirement would conflict with this provision. While not in any way conceding that this interpretation of the Charter was legitimate, Mr. Bullock pointed out that when the City Charter was amended in 1989, the amended Charter’s provisions adopted the then existing City zoning ordinances, including the language of 1703(E) requiring greater than a simple majority vote. If any potential ambiguity existed prior to the Charter’s amendment, it was resolved by the Charter’s specific adoption of the zoning ordinances as they were then worded.
Regarding the Defendants’ contention that the City’s zoning proceedings were matters of strictly local concern and did not invoke or allow for more than a minimal review by the District Court of what occurred in them, Mr. Bullock argued that the Court should consider issues of due process of law and basic fairness in counting of the number of zoning protests to be matters of statewide concern subject to constitutional and statutory protections and requiring a full review of the matter by the District Court.
It was strongly urged that the case should be set for trial and that the Defendants’ motions for summary judgment should be denied. Unless both issues (1) and (2) are resolved in the Defendants’ favor, the case should go to trial.
Judge Gassett paid great attention to the arguments and asked good questions of both sides. He then passed making a decision on the matter to a hearing before him in the same courtroom on August 31st at 4:00 p.m.
Mona Miller, President of Homeowners for Fair Zoning, wishes to thank all those who made phone calls to notify people of the hearing, showed up at the hearing and otherwise helped arrange for people to demonstrate community support for this lawsuit.
Posted by webmaster at 01:15 PM
August 24, 2004
Homeowner's for Fair Zoning - Please Read
I rec'd the following update from Donna Beekman who is Lewis Crest's representative in HFFZ --
If you do not know - please be aware of a VERY important court hearing this Thursday the 26th at Judge Gassett's courtroom, on the 5th floor of th courthouse, 3:00 p.m.At this hearing the City of Tulsa attorneys will attempt to discredit the citizens right to petition zoning matters which includes issues requiring a super majority. This issue has the ability to affect every citizen of Tulsa.
Six of nine city councilors strongly disagree with the city attorneys. Where does our district nice councilor stand on this issue? Hopefully she is on the citizens side.
We need as many as possible at the courtroom to show concern and support for citizens rights!!!
Please do all you can to be there. I intend to take time off from work as it is that important. We all know what we have/are going through with our own zoning issue.I hope to see many of my neighbors there, so the judge can see where the citizens stand on this issue. Donna
If at all possible please show up and show your support! If your not able to be present write your City Councilor and tell them your thoughts on this matter. The Lewis Crest Neighborhood Association is in Tulsa Council District 9 and our Councilor is Susan Neal. Her email address is dist9@tulsacouncil.org.
Posted by webmaster at 05:25 PM