Bell's new rollercoaster: Appeals Court slips up

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.