Fair zoning decision August 31st


Received the following summary of what happened at yesterday's hearing on summary judgment in the 71st & Harvard protest petition civil rights case. Bottom line is that Judge Gassett deferred a decision until August 31 at 11 in his courtroom.

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 11:00 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.

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This page contains a single entry by Michael Bates published on August 27, 2004 2:50 PM.

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