Broken Arrow City Council
Meeting of: 02-20-2018
To: Mayor and City Council
From: Office of the City Attorney
Title:
title
Consideration, discussion, and possible approval of Resolution No. 1082, a Resolution of the City Council of the City of Broken Arrow authorizing initiation of an action for Declaratory Relief against Henry and Vestina Hanewinkel, Brown and Perkins, LLC, and other necessary and appropriate Defendants regarding what zoning classification should be applied to a tract of land consisting of 19.64 acres of land located east of North Elm Avenue, and One-Quarter mile south of Omaha Street in Broken Arrow, Tulsa County, State of Oklahoma, and potentially challenging the requirements of Okla. Stat. tit. 11, § 14-102
End
Background:
Planned Unit Development (PUD) 266 and BAZ-1986 involve a 19.64-acre undeveloped tract located east of North Elm Avenue, one-quarter mile south of Omaha Street. Applicant is requesting that the zoning on the unplatted property be changed from A-1 to PUD 266/RM (Multi-family Residential).
On September 15, 2015, the Broken Arrow City Council approved a change in the Comprehensive Plan designation on an undeveloped tract of land located east of North Elm Avenue, and one-quarter mile south of Omaha Street, in Broken Arrow, Tulsa County, Oklahoma. The approval changed the designation from Level 2 to Level 3, subject to the property being platted and a PUD being submitted that was similar in context to the draft PUD submitted with BACP 146. Following approval of the Comprehensive Plan, the applicants filed a rezoning application seeking approval of BAZ-1986 and PUD-266, which would have changed the property from A-1 to multi-family.
In their meeting of October 12, 2017, the Planning Commission recommended approval of PUD- 266 and BAZ-1986, subject to the property being platted. During the Public Hearing, one speaker spoke in support of the application. The property owner to the south expressed support for the application, but was concerned about the reduction in the width of the landscape buffer along the south boundary from 35 feet to 25 feet. Three residents in the Country Lane addition to the east expressed concern about the impacts (increase in traffic and crime) the proposed development could have on their neighborhood.
PUD-266 and BAZ-1986 were placed on the November 7, 2017 City Council meeting agenda for consideration. The items were then continued to the Council Meeting of November 21, 2017. At that meeting, two of the Council Members left the meeting and did not participate in the discussion or the vote. At least seven (7) residents were present at the meeting and expressed concerns about this project. Two (2) of the remaining Council Members voted in favor of the project. One of the remaining Members voted against it. At the time of the vote, it was announced that the applications had failed because a three-fifths favorable vote of all members was required to approve the zoning change.
Following the meeting City Staff, including the Legal Department, began the process of evaluating the law and the process involved in this matter and on November 29, 2017, the applicant requested that the City review the decision. Section 6.3.D.g.iii of the City of Broken Arrow Zoning Ordinance states in regards to protests: “Any owner of property effected by a proposed (map) amendment may protest the amendment pursuant to the statutory requirements of O.S. (Oklahoma Statutes) Title 11 Section 43-105.”
Title 11, Section 43-105 of the Oklahoma State Statutes provides as follows:
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.
In accordance with State Law, the public hearing was held by the Planning Commission on October 12, 2017. No protests were filed with the City Clerk’s office three (3) days before the date of the public hearing.
As such, a three-fifths vote was not required for conditional approval of BAZ-1986 and PUD-266. However, to maximize transparency and to avoid the appearance of action outside of the public view, City Staff is proposing reconsideration of this matter before the Broken Arrow City Council. Notice of this reconsideration was mailed to all residents within a 300-foot radius.
On December 13, 2017, the City Attorney received a letter from Scott Hathaway, an attorney with the firm of Conner & Winters, LLP. Mr. Hathaway is representing a number of the residents that are protesting rezoning of this area. He took the position that at the November 21st Council Meeting, that the two (2) Council Members who left the room abstained and therefore the measure should have been denied by three (3) as the abstentions would count as a “no” vote. The Legal Department takes the position that because the two (2) Members left the room, there were no abstentions. This position is supported by the independent opinion of well-respected municipal attorney Margaret McMorrow-Love in Oklahoma City and the Oklahoma Municipal League’s General Counsel.
On January 2, 2018, on behalf of Henry and Vestina Hanewinkel, Mr. Hathaway filed this action against the City of Broken Arrow and the developers Brown and Perkins, L.L.C. The City has been served with this suit and the answer is due on January 28, 2018. The Plaintiffs take the position that the measure should have been denied. They also allege that the matter should not be reconsidered by the Council for a full year pursuant to the Broken Arrow Zoning Code. Staff takes the position that the Council possesses the ability to reconsider the PUD and rezoning request. First, reconsideration is recommended due to the contradictory announcement and to maximize transparency. Second, the Council possesses the ability to waive City ordinances when appropriate. In the instant case, the one (1) year requirement was initiated to keep applicants from re-submitting applications repeatedly on issues that had been denied. That is not the case with this particular reconsideration.
In January 11, 2018, Concerned Residents of Broken Arrow submitted a “Letter in Protest” of this development. It included a cover letter and the signature of 36 individuals. The packet also included letters to the Planning Commission and a Protest with numerous signatures that were presented in 2015 during the process to change the Comprehensive Plan.
The developers are being represented by Laurence Pinkerton. They take the position that the re-zoning and the PUD were approved so there is no need for reconsideration. They also take the position that denial of the applications are arbitrary and capricious and will seek district court action if the re-zoning and the PUD are not granted.
The City of Broken Arrow handles rezoning applications somewhat differently than other cities. Rezoning and PUD’s receive essential conditional approval by the City Council. Once the requirements of re-zoning have been met, formal approval is presented to the Council in ordinance form. In this case, the applicant was required to plat the property before BAZ-1986 and PUD-266 will be finally approved. This process is utilized to ensure compliance with various conditions prior to formal approval.
Importantly, a majority vote of all the members of the City Council is required to adopt an ordinance. This provision is contained in 11 O.S., Section 14-102 of the Oklahoma Statutes. As a result, even if the conditional rezoning and PUD approval were approved by a 2-1 vote, the measure would not be approved if fewer than three (3) Council Members declined to adopt the ordinance.
Further complicating this situation is Section 6.3.D of the Broken Arrow Zoning Code which addresses platting and the subsequent adoption of zoning ordinances. It provides in pertinent part:
“(A) All land that has been rezoned shall be platted in accordance with the requirements of the Broken Arrow Subdivision Ordinance in order to provide for the proper arrangement of streets, assure the adequacy of open space for traffic, provide for utilities, and allow access of emergency vehicles. No map amendment for a zoning change, nor the ordinance proclaiming this change, may be approved by the City Council until the property has been platted in accordance with the Subdivision Ordinance. However, the City Council may waive the platting requirement in those instances in which nothing would be accomplished through enforcement of the platting requirement, such as in those instances in which the land is included within the existing plat of record that adequately provides for the necessary public features, or where these public features have been previously provided by other instruments.”
On January 16, 2018, the Council reconsidered PUD 266 and BAZ-1986. Two of the Council members left the meeting and did not participate in the discussion or the vote. Two (2) of the remaining Council Members voted in favor of the project. One of the remaining Members voted against it. It was announced at the meeting the motion for approval had passed.
Importantly, however, consideration of the ordinance under these circumstances at some time in the future places the City at risk, particularly if the developer elects to move forward with activities on the property such as engineering, platting, and possible site work. At that time, the developer or a subsequent landowner would certainly claim that the City had deprived them of the use of their property by failing to adopt the ordinance and rezoning the property. Damages could be substantial. For that reason and also due to the pending litigation, Staff recommends that City Council approve this Resolution No. 1082 and direct the City Attorney to file a Declaratory Judgment action in this Matter
Cost: Filing Fees and other related costs
Prepared By: Beth Anne Childs, City Attorney
Reviewed By: Development Services Department
Assistant City Manager, Operations
Approved By: Michael L. Spurgeon, City Manager
Attachments: Resolution No. 1082
Recommendation: Approve Resolution No. 1082 and authorize its execution.