Ballpark assessment plaintiffs petition for summary judgment

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It's opening day for the Tulsa Drillers at Oneok Field, and some of the downtown property owners who are forced to pay for its construction filed a petition today for summary judgment in their lawsuit to overturn the assessment for the Tulsa Stadium Improvement District.

The case against the ballpark assessment seems pretty solid. State law requires that an assessment be used to pay for improvements that provide a direct benefit to those subject to the assessment. In Oklahoma City, assessments for maintenance of Bricktown, the Bricktown Canal, and the Conncourse (the underground tunnel system connecting downtown buildings), pay assessments based on a formula. The more you benefit from the improvements and their maintenance, the more you pay. The same thing was true for the previous downtown assessment, which was in part proportional to proximity to the Main Mall. The current assessment is a flat rate per sq. ft. of land and sq. ft. of building, applied equally to properties across the street from the new ballpark to properties over a mile away.

More excerpts after the jump, but the point of law that jumped out on me was part III of the petition:

Oklahoma Const. Article 10 §26 protects the citizens from government run amuck. It protects the citizens from long term financial obligation without a vote of the people. A stadium is exactly the sort of municipal building project that should be paid for by all of the property owners in the city after approval by a three-fifths majority of the voters. The City of Tulsa cannot avoid this constitutional requirement by the legal legerdemain of labeling the project a local improvement, and decreeing that it shall be paid by assessment by a relatively small group of arbitrarily selected property owners. A ninety million dollar assessment, almost sixty million of which is to service debt incurred to build new ballpark and for which the people forced to pay receive nothing in return,--not even box seats or season tickets-- is a coercive use of government authority so unfair and oppressive as to shock the conscience, and in violation of clearly stated statutory and constitutional protections.

The point and purpose of the constitutional provision cited above is to protect the citizens from exactly what has happened here. Admittedly, the City itself theoretically escaped obligation through the artifice of creating a public trust, but the constitutional provision is there for the protection of the citizens who would ultimately be forced to pay the financial obligation. The fact that the City has essential laundered the obligation through a trust does not alter the essential constitutional principle at issue. Furthermore, the fact that rather than the cost of a new stadium being born evenly by the entire city, this 60 million dollar burden has been thrust upon the shoulders of a very few makes it all the more egregious, the damage more significant and all the more deserving of constitutional limitation. For the reason that the City of Tulsa may not evade the restrictions of Article 10 § 26 by engaging in the fiction that this is a local improvement, this assessment district is unconstitutional and should be declared unconstitutional, and null and void by the court.

That same constitutional provision should have protected Tulsans from getting stuck with the tab for Great Plains Airlines, should have prevented the pledging of a municipal trust's asset as collateral without a vote of the people.

A lot of my friends hail Kathy Taylor as a visionary mayor. However good her intentions may have been, her decision-making approach and her disregard for the constitutional and statutory limits on local government led her to choices that ultimately will prove very expensive for the citizens of Tulsa to clean up. Oneok Field is one example, the new City Hall purchase is another.

The property owners contend that the creation of this assessment district violates both state and federal constitutions as well as state statutes governing the creation of such districts. This case is ripe for summary judgment because there are no material facts at issue. This assessment district must fail on its face as a matter of law....

The Ordinance creating the assessment district must fail on its face due to the fact that it will assess one point one million dollars a year from the subject property owners for "services" without specifying what those services are to be, rendering it impossible to determine what benefit would be received and whether the benefit is proportional to the burden placed upon the property as required by statute....

An assessment is a charge or levy made by a city against certain properties for certain local improvements or services specifically benefiting those properties. A municipality may only assess property owners if the property assessed receives benefits which are proportional to the amount of the assessment. "Special assessments are levied against particular property to enforce payment for a benefit created upon the property of a value corresponding and equal to the amount of the special assessment." City of Idabel v. School Dist. No. Five, 1967 OK 202, ¶ 7, 434 P.2d 285. If the benefits are not proportional to the assessment, the assessment constitutes a taking without just compensation. Application of Erick Hospital District, 1968 OK 112, 444 P.2d 216; The City of Lawton v. Akers, 1958 OK 292, ¶ 22, 333 P.2d 520. ...

The statutes governing assessment districts state repeatedly that there must be a description of the improvement and a statement of the benefit which will be conferred on each tract or parcel. Okla. Stat. title 11 § 39-106 states that a petition to create an assessment district must set forth the general nature of the improvements to be made, the estimated or probable cost of the proposal, and the area of the proposed district to be assessed. It says that if the City decides the creation of a district is necessary then the resolution shall direct the engineer to set forth the basis of the assessment showing the benefit to each tract and parcel of land, and submit plans for the type of construction and the estimated costs of the improvement.

Okla. stat. title 11 §39-107 states that notice of the intent to create an improvement district shall "Describe the improvement to be constructed and the general location thereof" and state that a person may ascertain in the office of the municipal clerk "the maximum amount of benefit estimated to be conferred." In § 39-110 the statute provides that the City must determine the total estimated cost of the improvement that shall be assessed against benefited tracts or parcels of land.

Property owners then have certain limited time in which to object to the propriety and advisability of the improvement, the cost of the improvement, the manner of paying for it, and the amount to be assessed against the individual tract or parcel of land. See, Okla. Stat. title 11 § 39-108. When the governing body fails to identify what it proposes to do, and instead simply announces that it will take one point one million dollars and decide later how that money will be spent, then the property owners are deprived of the opportunity to evaluate the improvement (services) or to make a meaningful challenge. ...

In the videotaped proceedings of the Tulsa City Council and the transcript thereof, there was a great deal of testimony about the sales taxes that would be generated, benefiting the City and the County as a whole.ii There was discussion about the threat that the Drillers would move to Jenks if the City did not find a way to fund a new stadium.iii There was, however, no testimony or evidence whatsoever about benefit to the assessed properties in particular other than vague hopes that property values might rise pursuant to an ongoing plan to stimulate development downtown. Furthermore, even if it were taken as true that the construction of a baseball stadium could conceivably benefit some of the downtown properties, the witnesses testifying before the City Council acknowledged that a stadium alone was unlikely to produce the sort of results they hoped for, and that there would never be any way to determine the direct effects of the stadium itself. This point was made by both the State of Oklahoma and Tulsa County in objections filed to the assessment roll, objecting to the amount charged against state and county owned property within the district....

The benefits of the sort contemplated under Okla. Stat. title 11 § 39-103 are real, immediate, tangible, and physically linked in some way to the real property being assessed. If a street light is installed, then the property served is immediately illuminated while the properties across town are not. If a sewer line is installed, then the properties attached to that line immediately enjoy the benefits thereby while properties not connected to that sewer line do not. A sidewalk provides for pedestrian comfort and access for people crossing or visiting that property. The same type of real, immediate, direct and tangible benefit can be seen in each and every enumerated improvement set forth in the statute. There is quite simply no rational basis for any claim that there is such an actual, physical and material benefit to any of the properties in the District, much less to each and every square foot of property to an identical degree, justifying an assessment total of in excess of 90 million dollars ($90,000,000) against these properties.

The Oklahoma Supreme Court has specifically held that the benefit to assessed properties must be substantial, certain, physical and material. At best any benefit to the assessed properties is remote, speculative, not directly proportional to the amount assessed, and impossible to link directly to the effects of the stadium. Therefore, the creation of the assessment district is an illegal act, and the assessment against these properties constitutes a taking without just compensation and must be barred....

The boundaries of the Stadium District are drawn arbitrarily and capriciously and do not fairly include all similarly situated properties. The district is roughly rectangular, with the stadium placed literally against the far northern boundary of the district and within a few blocks of the eastern boundary.15 If one were to take a compass, using the stadium as a center point, and draw a circle around the stadium fully encompassing the improvement district, approximately seventy percent of all the properties located within the circle and in the same proximity to the stadium will fall outside the assessment district and pay nothing toward the cost of the stadium. The entire burden of this assessment district falls upon one quarter of the circle. Properties such as that owned by Plaintiff Better Price Warehouse, located more than a mile from the stadium pay at the exact same rate as properties within the district located across the street from the stadium, while properties directly across the street on the other side of the stadium fall outside the district and pay nothing whatsoever. ...

In order to justify this assessment, the City must show that each of the properties forced to pay this assessment benefit in some special way not shared by any other properties outside the district. But with a simple exercise in geometry it is apparent that approximately 70% of all the properties in the same geographic proximity are not included in the assessment district.

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yogi said:

It will be very interesting to see how this develops. I'm no lawyer by any means but it seems to me that this should have been put to a vote of the people.

If this project can be financed through such a maneuver then I don't know what project cannot.

I haven't been to the new ballpark but all comments I've heard are positive but so what?

Roy said:

Don't need the INAL disclamer. (Often tempted to suggest bringing a high school English teacher into court to interpret the 'plain English' of statutes ;D ) Plain that what Kathy et al did not only morally wrong but explicitly legally wrong. "Disregard for the constitutional and statutory limits on local government" indeed.(Not only that, but Drillers lost both games opening the new stadium ;( To paraphrase a fast food commercial from last century, "Where's the benefit?")

Will the folks imposing the stadium assessment (and, as Mike observed, the already paid Great Plains assessment) get away with no personal cost?

Put another way: how can one (eg, me) complain about the upcoming national assessment for health care and remain silent about what's going on locally?

First, congratulations on adding a beautiful ballpark to your urban center. I've always thought that part of downtown could do well with such an addition.
That said, it's interesting to note how Oklahoma City's municipal attorneys have differed with Tulsa's in terms of BID spending. In Tulsa you can use BID money to build a ballpark. OKC won't allow such funds to even be used to build a ticket booth.

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This page contains a single entry by Michael Bates published on April 8, 2010 9:58 PM.

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