Karen Keith's ex post facto crusade for unfair zoning

By Michael Bates on November 20, 2009 12:20 AM | Permalink | TrackBacks (0)

Tulsa County Commissioner Karen Keith's bizarre and unprecedented campaign to remove Tulsa Metropolitan Area Planning Commission member Elizabeth Wright (for bogus reasons, a year before her term expires) reaches its climax on Monday, November 23, 2009, at 9:30 a.m., at a public hearing to be held as part of the weekly County Commission meeting. The venue is Room 119 of the County Courthouse, near the 6th Street entrance west of Denver Ave.

As a candidate for County Commission in 2008, Keith received significant campaign contributions from a number of donors connected to the development industry, including a $1,000 contribution from John Bumgarner. The Bumgarner contribution was received one day after the pre-election reporting deadline, so that it didn't have to be made public, via the State Ethics Commission, until after the election. (Here is Karen Keith's post-general-election contribution report.)

Bumgarner is the developer of the now vacant site southwest of Utica and the Broken Arrow Expressway. His extraordinary deal with the TMAPC -- a straight zoning change plus a deed covenant, rather than the usual planned unit development (PUD) with development standards -- prompted Wright's September 16, 2008, appearance before the City Council's committee discussion of the rezoning. She did not speak in opposition but spoke to advise the Council of the unusual nature of the proposal. While PUD development standards are enforceable administratively, through the city's building permits, certificates of occupancy, and code enforcement, a deed covenant is only enforceable by means of litigation. Here is the summary of Wright's statement in the committee meeting's minutes:

Ms. Wright stated there was no input by public. No terms of covenant were given to citizens. The vote may have turned out differently had there been. The procedure, not the development that is in question.

(Here are the TMAPC minutes on the 14th and Utica zoning case, Z-7102. The contrast is striking between, on the one hand, the concerns expressed by Wright and Commissioner Michelle Cantrell about the precedent being set and, on the other hand, the callous disregard of precedent and the Comprehensive Plan by INCOG development staff and the other TMAPC members. The rezoning was approved with only Wright and Cantrell in opposition.)

Seven months after Wright's appearance at the Council committee meeting, the TMAPC amended its code of ethics to require any commissioner wishing to speak to the Council to notify the other commissioners 24 hours in advance. In fact, the two specific ethics code provisions cited in Keith's complaint against Wright were both added by the TMAPC on April 22, 2009, long after her alleged offenses against those provisions were committed.

(UPDATE: Here is archive.org's copy of the December 1, 2004, version of the TMAPC code of ethics. I will continue to look for a more recent version, but in all likelihood, this was the version governing the TMAPC at the time of the alleged offenses. This version was captured by the Internet Archive on September 30, 2006.)

The time of day for the hearing to remove Wright makes it difficult for ordinary homeowners, concerned about fair application of zoning laws and protecting their property values and quality of life, to come downtown to defend one of a tiny number of TMAPC commissioners not tied to the development industry. By contrast, it will be easy for zoning attorneys and development lobbyists to show up en masse to speak in favor of what might be called "viewpoint purity" on the planning commission.

Never mind that Wright's point of view has seldom if ever prevailed in controversial issues; more often she has been the lone vote or one of a few in opposition. Those behind the effort to oust Wright appear to have this goal in mind: The TMAPC must be purged of any member with the intelligence, independence, and courage to contradict the claims of a developer or his attorney. It would seem that winning by a vote of 10-1 or 9-2 isn't enough for the vengeful, scorched-earth branch of the development lobby. Evidently they want to marginalize anyone who might articulate an alternative point of view in the TMAPC's deliberations.

I have been provided with a copy of the petition filed by Karen Keith for the removal of Elizabeth Wright from the TMAPC (1.8 MB PDF). Minus the header and signature, this is the petition in its entirety:

COMES NOW Karen Keith, duly elected Tulsa County Commissioner for District No.2 Tulsa County, Oklahoma and brings this Petition For Removal of Elizabeth Wright as a member of the Tulsa Metropolitan Area Planning Commission ( TMAPC ).
The specific and general cause and basis for this removal includes, but is not limited to, the following:

1. Violation of the Policies and Procedures and Code of Ethics of the Tulsa Metropolitan Area Planning Commission, as Amended April 22, 2009, specifically section II: Code of Ethics -8. Conflict of Interest 1. b.

2. Conduct which materially and adversely affects the orderly or efficient operation of the TMAPC

3. Violation of the Policies and Procedures and Code of Ethics of the Tulsa Metropolitan Area Planning Commission, specifically section II: Code of Ethics - E. Appearance at City Council in August of 2008.

Believing that these grounds constitute "cause" for removal, Petitioner respectfully request that the Tulsa Board of County Commissioners set a public hearing to consider this Petition For Removal.

No specific charges are attached, nothing to specify the date or substance of any alleged violation. There was, attached to copy of the petition provided to me, a

two-page, undated, unsigned outline of the procedure that may be followed on Monday:

PROCEDURE FOR THE REMOVAL OF A PLANNING COMMISSIONER UPON VOTE BY THE BOARD OF COUNTY COMMISSIONERS OF TULSA COUNTY.

(A) In General

The Tulsa County Board of County Commissioners ("Board") may, upon a majority vote, decide to consider whether to remove an appointed Planning Commissioner from the Tulsa Metropolitan Area Planning Commission ( TMAPC). Pursuant to Title 19, 0.5. Section 863.5 -Members of Commission Appointment-Term-Vacancy-Removal-Ex Officio Members-Members to Serve Without Compensation, the Board of County Commissioners has the power of appointment to TMAPC. The Board has the additional responsibility and authority to remove a member of TMAPC that has been appointed by the Board. Under this statute, a member of the TMAPC may be removed from office "for cause" after a hearing held before the governing body by which he or she was appointed. "Cause" shall include, but not be limited to, performance, conduct or behavior, whether by acts or omission, or violation of the Policies and Procedures and Code of Ethics as adopted by the TMAPC, which the Board of County Commissioners concludes materially and adversely affects the orderly or efficient operation of the TMAPC.

(B) Procedure

Upon such a vote to consider removal, the Board of County Commissioners shall set a public hearing in accordance with applicable Oklahoma state statutes regarding notice, posting, and setting and provide notice to the Planning Commissioner whose removal is to be considered by certified mail, return receipt requested, or by hand delivery to the Planning Commissioner whose removal is to be considered. The notice shall be in the form of a Notice of Public Hearing from the Board that shall schedule a date and time for such consideration at a public hearing held before the Board of County Commissioners, as well as the reasons for such consideration.

The public hearing before the Board of County Commissioners shall be no less than three (3) weeks after a request for removal has been presented to the County Commission. Said notice of public hearing shall be duly and properly posted.

The Planning Commissioner whose removal is sought may appear at that date and time and shall be given an opportunity to be heard by the Board of County Commissioners as to the reasons why his or her removal is not warranted, and may be represented by counsel at the hearing.

The Board has the inherent authority to determine any necessary rules of conduct in the hearing to maintain decorum and order. Rules of conduct by those in attendance of a hearing before the Board may include the potential of a time limit to the amount of time provided to those who request to speak for or against an item on the Board's agenda, requiring those speaking to stand at the podium and speak loud enough to be audio recorded in order that an accurate recorded [sic] of the proceedings can be accomplished, and others that would fall under the general category of rules of conduct that allow the Board to maintain decorum and order in the meetings.

Upon conclusion of the hearing the Board of County Commissioners shall take a vote to determine whether removal of the Planning Commissioner is warranted. If the decision of the Board is removal of the Planning Commissioner is warranted, the Board shall indicate the effective date of the removal.

As you can see, key elements of the procedure are left vague or undefined. Based on the vagueness of the charges and the description of the process, I am anticipating a kind of kangaroo court: Wright will be allowed to speak in her own defense, followed by members of the public. Only then will Keith present the specifics of the case, followed by discussion among the county commissioners. Neither Wright nor members of the public will have the opportunity for rebuttal. The commissioners' discussion may be quite brief if they have already discussed the matter privately and reached a consensus, by means of the county commission tradition of using a go-between to adhere to the letter, but not the spirit, of the Open Meetings Act.

What should happen is that Keith should be compelled by the other two county commissioners, John Smaligo and Fred Perry, to present the specifics of her charges against Wright, and then they should vote to continue the hearing to a future date to allow Wright and her supporters adequate time to prepare a defense. That would be the fair thing to do.

And something else that should happen: There are developers, real estate brokers, and other members of the development community who understand that all parties deserve a fair hearing in the land use regulation process. They understand the need for collaboration and compromise when it comes to controversial matters like infill development in stable neighborhoods. They need to speak out against the attempt to remove Wright and work to moderate their more volatile colleagues.

After the defeat of the development industry's attempt to recall Jim Mautino and Chris Medlock and the passage of the zoning protest petition charter amendment, it appeared that the development industry was prepared to take a more conciliatory tone. The removal of Liz Wright from the TMAPC would be seen by many neighborhood leaders and members of the City Council as an act of aggression, a power play by a power-hungry industry unwilling to cooperate with other interest groups. But what we need, as we move toward a new comprehensive plan and a new approach to development, is diplomacy and a willingness to cooperate to reach win-win outcomes.

How the commissioners handle this case should be a litmus test issue for every property owner in the City of Tulsa or unincorporated Tulsa County concerned about fair treatment of all parties in the zoning process. If you're concerned about a fair hearing for Tulsa proposed new comprehensive plan, you should be concerned about the outcome of this case. If any county commissioner votes to remove Wright for bogus reasons before her three-year term has expired, the citizens of Tulsa County need to remove that commissioner from office at the next opportunity. For two county commissioners, that opportunity is just a few months away.

MORE: Read Mike Easterling's story on the Karen Keith-Liz Wright controversy in the latest issue of Urban Tulsa Weekly. And for more background, see my earlier entry, "Karen Keith trying to bully neighborhood leader off planning commission."

You can read Elizabeth Wright's own comments on the removal effort at TulsaNow's public forum.

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