UTW Column Archive: April 2006 Archives

An edited version of this piece was published on April 26, 2006, in Urban Tulsa Weekly. The archived version is no longer online. Posted on the web on August 18, 2010.

It appears that Tulsa's development lobby, discouraged by the results of the Tulsa City Council elections, has decided to take its fight to the next level. Three Tulsa legislators have sponsored a bill that would interfere with local control of Board of Adjustment (BoA) appeals.

The bill, HB 2559, would require all appeals of Board of Adjustment decisions, whether variances or special exceptions, to go to District Court, with the attendant expenses of attorneys and court costs. The BoA can grant a variance to zoning ordinances if a hardship exists. The BoA can grant a special exception to allow certain uses that aren't allowed by right by the zoning of a piece of property.

In the past, Councilor Roscoe Turner and then-Councilor Jim Mautino have argued that certain BoA decisions should be first appealed to the City Council. While the BoA acts as a quasi-judicial body in many cases, in special exception cases it has the discretion to consider subjective matters like neighborhood compatibility. A special exception can have the impact of a zoning change, and neighborhood advocates argue that the City Council should have the opportunity to review such decisions before the courts are involved.

Under current law, Tulsa's City Council could modify our ordinances to tailor the BoA appeals process to balance the concerns of developers and neighboring property owners. HB 2559, sponsored by State Reps. Ron Peters and Jeannie McDaniel and Sen. Brian Crain, would take away this local discretion over the process and would dictate a one-size-fits-all solution for the entire state.

HB 2559 passed the House on March 8 and passed the Senate on April 19. Because the House "struck the title," the bill must go back to the House for one more vote before it can go to the Governor's desk. All of Tulsa's state representatives and all but two of our state senators supported the measure. (Republican Senators Randy Brogdon and Scott Pruitt voted against.)

An amendment to the bill that would have interfered with local control over historic preservation (HP) overlay zoning was also considered by the State Senate on April 19, but it failed by a 21-24 vote. Of Tulsa's senators, only Judy Eason-McEntyre voted yes.

Five historic Tulsa neighborhoods (and the park around the Council Oak) have special protection under Tulsa's zoning code. Exterior modifications and new construction within an HP zoning district need a certificate of appropriateness from the Tulsa Preservation Commission (TPC) before proceeding, to ensure that the historic character of the neighborhood is maintained. Demolition permits can be delayed for up to 60 days.

HP protection serves the same value-protecting purpose that deed restrictions serve in newer subdivisions. If you buy a home in an HP neighborhood, you can invest in maintaining your home to historic standards with the assurance that your neighbors are subject to the same rules.

But the protection is undermined if someone can easily buy a property in an HP-zoned neighborhood and have it removed from the district. The failed amendment to HB 2559 would have cut the TPC and the Tulsa Metropolitan Area Planning Commission (TMAPC) completely out of the process of removing lots from an HP district.

In contrast, the process of creating an HP district or expanding its boundaries requires a great deal of time, historical research, and public input. As a rule of thumb, HP districts need the support of 80% of property owners in the district to move forward through three separate levels of review. Removing a property from the district ought to require a similar high standard of review.

Tulsa's development lobby is used to getting its way 100%. Rather than sitting down with other Tulsans to develop a land-use system that will serve the needs of everyone, they have tried and failed to recall two councilors from office, tried and failed to dismember three City Council districts and replace them with citywide supercouncilor seats, and tried and failed to pack the Council with people they can control. In a move akin to plugging your ears with your fingers and singing "The Star-Spangled Banner," they excluded then-Councilor Chris Medlock from their mayoral candidate forum.

I was hopeful when I learned of the departure earlier this year of Josh Fowler from his post as the Home Builders Association of Greater Tulsa's executive director. I was hopeful that the development lobby had finally recognized that the pit bull tactics he epitomized were no longer working. I was hopeful that the developers were ready to take a more conciliatory approach to public policy. This legislative end-around shows that my hopes weren't well-founded.

Frustrated by the fact that ordinary Tulsans are paying attention to City Hall, Tulsa's development lobby is now trying to dictate local land-use policy from Oklahoma City. Whatever the merits of BoA appeals or of moving parcels in and out of HP districts, those are local matters that should be settled locally.

We need to let our state legislators know that HB 2559 is unacceptable. Homeowners and other property owners should object to local decisions being made a hundred miles away, where it's harder to keep an eye on things. Our City Council and municipal officials across the state ought to object loudly to this infringement on their prerogatives.

In his 2000 campaign book, A Charge to Keep, George W. Bush wrote that he is a conservative because he believes that government closest to the people governs best. I expect to see my fellow Republicans at the State Capitol uphold this fundamental Republican principle, and I expect them to defeat HB 2559 when it comes back to the State House of Representatives for a final vote.

In other City Hall news:

Last Friday the latest round of bids on subcontracts for the construction of the BOk Center were opened.

This was after a two-week delay to give bidders "more preparation time," according a report to the Tulsa World. Despite reassurances that all was well, there was good reason to assume that the delay was because of concerns that bids were coming in way over budget.

As it turned out, the lowest bids on each item exceeded budget by $32 million, about a 50% overage. The total of all five bid packages, plus the cost of land acquisition, plus the amount paid for architectural, project management, and other professional services comes to just shy of $150 million. The remaining bid packages are budgeted at around $30 million, which would bring the total for the arena alone to $180 million.

Remember that the Vision 2025 package allocated $183 million of that sales tax to pay for both the construction of an arena and improvements to the Convention Center, including the conversion of the existing arena into ballroom space. It looks like we won't have anything left to fix the facility that, we have been told again and again, is crucial to bringing outside dollars into the local economy.

When Councilor Chris Medlock raised concerns last fall about money being shifted from the Convention Center to the arena, he was shouted down by the monopoly daily paper and even by members of the overview committee who are supposedly keeping an eye on project finances on behalf of us taxpayers.

Back during the mayoral campaign, Democratic candidate Don McCorkell said he would stop work on the arena in order to get a handle on how much the facility would cost to complete and how much it would cost to operate and maintain. If the cost is going to exceed the budget by a wide margin, Tulsa's voters ought to decide whether or not it's worth proceeding. McCorkell's idea looks better all the time.

The fact that we've already put tens of millions into the arena doesn't mean it makes sense to throw good money after bad. (See "sunk costs, fallacy of.")

Meanwhile, County Commissioner Randi Miller, who had been mum about potential overages, not wanting to jeopardize renewal of the County's 4-to-Fix-Tax, now seems to be trying to recast herself as a taxpayer watchdog.

Some of us can remember when she was asked by Republican leaders, back in 2003, to make the arena a separate item on the Vision 2025 ballot, to give the voters a clear opportunity to vote against the arena without having to vote against the higher education improvements that were tied with it.

Miller stood by and did nothing at the time. She continued to go along to get along, voting with the other commissioners to sole-source the Vision 2025 financial contracts to favored vendors. After Vision 2025 was approved, when Medlock raised concerns about oversight and governance, Miller was silent.

On the other hand, Miller was more than happy, back on March 20, to grant a Murphy Brothers a 10-year exclusive contract to operate the Tulsa State Fair midway, despite complaints about rising prices and declining quality of the Murphy Brothers operation. The midway contract was not put out for competitive bids. Miller's support for the sweetheart deal with Murphy Brothers came after her mayoral campaign received a $5,000 contribution from Loretta Murphy, wife of Murphy Brothers owner Jerry Murphy.

Medlock, a genuine taxpayer watchdog, is continuing to keep an eye on arena expenditures at his blog, medblogged.blogspot.com.

An edited version of this column was published in Urban Tulsa Weekly on April 19, 2006. Posted to BatesLine on March 10, 2010. The archived column is no longer available on the UTW website.

Zoning Czar
By Michael D. Bates

Toward the end of his late campaign for re-election as Mayor of Tulsa, Bill LaFortune was looking for a bold, concrete way to demonstrate that his pledge to change direction in a second term as mayor was in earnest.

One possibility was to withdraw two pending reappointments of longtime members of the Tulsa Metropolitan Area Planning Commission (TMAPC). The idea was that, in their stead, LaFortune would submit nominees who would bring new perspectives to the TMAPC, which is dominated by members who are connected in some way to the development industry. Mine was one of three names that were discussed to fill one of these unpaid positions.

When the monopoly daily newspaper got wind of it, their editorial writers went ballistic. In a March 28 editorial, they wrote, "If [LaFortune] does place Bates on the planning commission, then the city might as well erect billboards at the edges of the city instructing developers to just keep on moving to the suburbs.

Developers already were leery of trying to develop in Tulsa because of the anti-development attitude that has taken root here in recent years -- including in some officials' offices."

It's funny: The last three times I've appeared before the Board of Adjustment (BOA), the TMAPC, or the City Council on a land use matter, it was in support of a development.

For example, last fall I spoke to the City Council in support of the Eastbrook townhouse/office development, going in on 35th Place east of Peoria. The development was opposed by a number of Brookside homeowners. I argued that the Council should strictly apply the Brookside Infill Plan, which had been developed jointly over several years by homeowners, business owners, and the City, and had been incorporated into the Comprehensive Plan. If the plan were set aside in this one case, it would leave both developers and homeowners uncertain about whether it would be honored in the future.

Even if I were named to the TMAPC, I'd only be one vote among eleven, so even assuming I were anti-development, as the World claims, my lone voice shouldn't be enough to deter builders and investors.

But even if I were named Zoning Czar of Tulsa and could redesign Tulsa's land-use planning and regulation policy single-handedly, developers would in time see me as a benevolent zoning despot. The system I'd design would Make Life Betterâ„¢ for homeowners, developers, real estate investors, building managers, tenants - in short, for everyone who lives or does business in Tulsa, because it would decrease risk and uncertainty while improving quality of life.

What would my ideal land-use system look like?

1. The aim of an ideal system would be to protect the investments of all property owners. That means homeowners as well as investors and developers.

2. My ideal system would be predictable. Before you invest in a piece of property you should be able to know with a high degree of certainty what you can and cannot do with your property and what your neighbors can and cannot do with theirs. If permission is dependent on the whim of city officials or on hiring a sufficiently expensive zoning attorney, the system isn't working as it should.

3. My ideal system would regulate what matters and leave the rest alone. Too often, our zoning code "protects" us against situations that really aren't problems, getting in the way of creative ideas that would enhance a neighborhood, while blithely permitting situations that are harmful to the neighborhood and the city as a whole. A good system allows as much freedom as possible, while not losing sight of the fact that what I do with my property affects the value of my neighbor's property.

4. My ideal system would accommodate a variety of neighborhood and development types in order to meet the variety of needs and interests in a city as big as Tulsa. There needs to be a place in Tulsa for an urban, densely developed downtown, as well as for big-box retail. There needs to be a place for both mixed-use, walkable neighborhoods where car-free living is possible, and for auto-oriented development with big-box stores and residential-only neighborhoods.

5. My ideal system would be clear and straightforward. The fewer and simpler the rules the better. Extra points for expressing those rules visually, to make it apparent to developers and homeowners alike what is allowed and what is not.

The present use-based zoning system fails all those criteria. Our current system is based on the assumption that what goes on inside a building has more of an impact on the neighbors than what's true about the outside of the building -- how big the building is, where it sits on the lot, how big the parking lot is.

Our current system follows the post-World-War-II assumption that homes and shops and offices have to be segregated from each other, despite centuries of experience that in the right sizes and proportions they can work together to make a great neighborhood.

Our current system ignores our thirty-year-old Comprehensive Plan as often as it honors it. More often than not, the Comprehensive Plan is amended after a parcel has been rezoned in a way that is contrary to the plan. It is not a reliable guide to homeowners or developers.

Our current system is one-size-fits-all. The same rules apply to Cherry Street and to 71st and Mingo. There's no recognition that development that would fit an auto-oriented strip of new development would not be appropriate as infill in a pedestrian-oriented traditional neighborhood. Under our current code, commercial is commercial - a Wal-Mart Supercenter is no different than an independent coffee house.

To make the current system work, exception after exception and patch upon patch have been added to the zoning code. In choosing to grant or deny a development, much weight is given to "neighborhood compatibility," but what that phrase means is left to the whim of the TMAPC and the City Council. Infill plans like Brookside's are the first attempt to define what neighborhood compatibility means, but for now those plans are not binding, only advisory.

The first steps have been made toward a new and improved system. The previous mayor and council approved work on a new Comprehensive Plan. Mayor Taylor called on her campaign website for the development of a form-based land-use code, which puts the emphasis on the size, shape, and position of buildings, rather than on what happens inside.

Before the election, Mayor LaFortune did withdraw the reappointments of Mary Hill and Brandon Jackson but didn't name any replacements. Mayor Taylor has the chance to name two new planning commissioners who will be fair in their application of the existing system, but who also have the vision and wisdom to help the city through the transition to a new and better system.

The best choices would bring a homeowner's perspective to the table - developers and associated industries are already well-represented on the TMAPC - but would have significant experience and knowledge about zoning and planning. We need new planning commissioners who are aware of Tulsa's zoning practices, but are also students of best practices elsewhere.

The Tulsa World likes to fearmonger about NIMBYs, but the so-called neighborhood naysayers that I know want nothing more than a fair system consistently applied. The World seems to want a system where the most expensive development attorney always wins.

I don't expect I'll ever be named to the TMAPC, much less be named the Pope of Planning, but if it were to happen, the City of Tulsa should erect billboards at the city limits saying, "Tulsa offers a fair, transparent, and up-to-date land-use system that maximizes freedom while protecting the investments of all property owners and our city's quality of life. Tulsa welcomes developers who will work with us to build a better Tulsa."

Of course, signs that wordy would probably violate some ordinance or another.

An edited version of this piece was published in the April 5, 2006, issue of Urban Tulsa Weekly. The archived version is no longer online. Posted on the web August 8, 2009.

For multi-partisan city elections

By Michael D. Bates

Once again, dear reader, you have me at a disadvantage. As you read this, you know who will be the next Mayor of Tulsa. As I write this, the election is still in the future. So let's look together at an issue that will be on the table no matter who wins Tuesday's election: the role of party politics in city elections.

A couple of weeks ago I received an e-mail from a prominent supporter of Kathy Taylor. He was expressing dismay that Republican leaders were trying to bring the other Republican candidates and their supporters behind Bill LaFortune, the Republican nominee.

I was amused by the tut-tutting about partisanship from the Taylor camp. Shut out as they are from both U. S. Senate seats and all but one congressional district, Democratic strategists are salivating at the prospect of once again having a Democrat as mayor of the state's second-largest city, someone who can attract donations to Democratic candidates for the State Legislature. According to Oologah Lake Leader editor John Wylie, State Rep. Jari Askins said at a recent Democratic fundraiser that "the election of Taylor would be a huge first step in taking back the [State] House and preserving the [State] Senate in 2006" for the Democratic Party.

Even if we strip partisan labels from the city election ballot, politics at all levels are too closely linked to keep the national parties from having an interest and an influence in local elections.

That said, I'm sympathetic to the idea of non-partisan city elections. Twice I proposed a charter amendment that would have eliminated party primaries and replaced them with an all-candidate election, preferably using Instant Runoff Voting (see my March 9th UTW column) or, failing that, a two-round system, with a separate runoff election between the top two if no candidate gets 50% in the first round.

Non-partisan elections are appealing because local political factions don't break neatly along national partisan lines. Chris Medlock says that there are really six "parties" in Tulsa politics, three factions which each have supporters in both national parties.

You have the Midtown old-money elites who are behind the paternalistic plan to replace three of the nine council districts with three citywide supercouncilors; in their view the hayseeds in North, West, and East Tulsa can't be trusted with self-government. Then there are the developers and the Chamber bureaucrats, who look at City government as a way to serve their institutional and business interests and don't want homeowners and small business to have even a seat at the table.

Finally, there are the populist grass-roots - the rest of us - who believe that city government should serve the interests of all Tulsans, not just a favored few, and that Tulsans from all classes and all parts of the city deserve a seat at the table.

There are Democrats and Republicans in all three factions, and they often find more kinship with those who share their outlook on city government than with their fellow Ds or Rs. That's how you wind up with a reform alliance on the city council made up of two Democrats and two Republican, opposed by a status quo caucus consisting of four Republicans and one Democrat.

Because our city primary system follows national party lines, the struggle between the three trans-partisan factions is often settled in the primary, and the general election doesn't offer much of a choice. Also, party labels on a general election ballot can be misleading. You'd think a Republican would oppose higher taxes or that a Democrat would oppose corporate welfare, but that ain't necessarily so. An R or a D doesn't tell the voter with which of the three city factions a candidate is aligned.

Would stripping party labels entirely be helpful to voters? In fact, it gives voters even less information to work with. Labels are helpful aids to memory. You may have trouble remembering the name of the candidates you plan to support, and knowing that you decided to vote with your party in the mayor's race and with the other party in the council race gives you an extra hook to recall your decision.

It's indisputable that non-partisan elections have lower turnout. You see this in judicial and school board elections here in Oklahoma, and it's borne out across the country. The theory is that voters, lacking even the little sliver of information that a party label provides, don't feel they know enough to make a choice and so they stay away.
On the same day that 60,000 Tulsans turned out to vote in our city primaries, only 14,000 Oklahoma City voters participated in their non-partisan mayor's race. That number was inflated above normal levels by the Oklahoma Republican Party chairman urging support for the re-election of Mayor Mick Cornett, a registered Republican. Just shy of 11,000 voted in the 2002 OKC mayor's race.

So how do we change Tulsa's system to expand both choice and information for voters?

Instead of non-partisan city elections, let's have multi-partisan elections. Put all candidates for a city office on the ballot, but instead of stripping away the party labels, let's let candidates apply the label or labels of their choosing. Maybe that would be a major party label, maybe that would be the name of a political action committee (PAC), or even both.

The actual mechanics would go something like this: Candidates would file their petitions for office. (With no primaries to filter candidates, everyone should have to collect 300 signatures in order to run.) Each PAC registered with the City Clerk's office would then have a week to submit to the election board the list of candidates they are endorsing. The county political parties would have the same opportunity if they choose to exercise it. Each candidate would then choose which party and PAC endorsements would appear next to his name on the ballot.

For example, this year the District 6 Council ballot might have looked like this:

• James Mautino - Republican, Homeowners for Fair Zoning
• Theresa Buchert - Grow Tulsa PAC, Bank of Oklahoma PAC
• Dennis Troyer - Democrat, N. E. Oklahoma Labor Council

With at least three candidates likely in every race on the ballot, we'd have to have some form of runoff; Instant Runoff Voting would be the best way to ensure that the winner would be chosen by a majority of voters. (Again, see my March 9th UTW column or www.fairvote.org for details.)

Non-partisan municipal elections would give Tulsans fewer and murkier choices. A multi-partisan ballot with a sound runoff system is the best way to give Tulsa's voters clearer, better, and more plentiful options when we choose our representatives at City Hall.