Date: 01-25-2008

Case Style: South Tulsa Citizens Coalition L.L.C. v. Arkansas River Bridge Authority

Case Number: 2008 OK 4

Judge: Kauger

Court: Supreme Court of OKlahoma on appeal from the District Court of Tulsa County

Plaintiff's Attorney:

George Gibbs, Christopher Wolek, Kevin S. Hoskins, Tulsa, Oklahoma, for Plaintiffs/Appellants.

Defendant's Attorney:

Stephen Oakley, Jenks, Oklahoma, John M. Hickey, Tulsa, Oklahoma, for Defendants/Appellees.

Description:

0 The Cities of Jenks and Bixby formed the Arkansas River Bridge Association (ARBA), a public trust, and entered into an agreement that granted the right to Infrastructure Ventures, Inc (IVI) to construct, maintain, and operate a toll bridge over the Arkansas River between Jenks and Tulsa. The South Tulsa Citizens Coalition, L.L.C. and Tom Snider (collectively, Coalition) sought a declaratory judgment that Jenks and ARBA were without authority to grant IVI the right to build a toll bridge outside of the corporate limits of Jenks and Bixby, and an injunction against construction of the bridge. Jenks, ARBA, and IVI moved for summary judgment. The trial court granted the motion, and the Coalition appealed. We retain the cause, reverse and remand the order of the trial court, and find that neither Jenks nor ARBA may construct, maintain, and operate the proposed toll bridge.

DISTRICT COURT ORDER REVERSED AND REMANDED.

1 The question presented is whether the trial court erred in granting the appellees' motion for summary judgment. We find that it did.

FACTS

2 On February 9, 2006, appellee, the City of Jenks, Oklahoma (Jenks) entered into an agreement with appellee, Industrial Ventures, Inc. (IVI) to build a toll bridge across the Arkansas River to connect the intersection of 131st Street South and South Yale Place in Jenks on the south bank of the river to the intersection of 121st Street South and South Yale Avenue in the City of Tulsa, Oklahoma (Tulsa) on the north bank of the river. The north connection of the bridge is not within the limits of Jenks, but it is within the limits of the Tulsa and includes a 45 acre parcel owned by Tulsa. Jenks has no existing street or roadway on the north side of the river. On February 15, 2006, appellants Tom Snider (Snider) and South Tulsa Citizens Coalition, L.L.C. (collectively, the Coalition) filed a petition in the District Court of Tulsa County seeking a declaratory judgment that: 1) Jenks violated Okla. Const. art. 18, §5(a)1 by improperly granting a franchise to IVI without a vote of Jenks' electors; 2) Jenks violated Okla. Const. art. 10, §26(a)2 by assuming a financial obligation without voter approval; 3) it was unlawful for Jenks to exercise the power of eminent domain outside its city limits; and 4) Jenks violated 61 O.S. 2001 §103(A)3 by failing to observe proper bidding procedures. The petition also sought to enjoin the appellees from constructing the bridge. On February 21, 2006, the appellees filed a motion to dismiss.

3 On June 6, 2006, the Coalition filed an amended petition seeking the additional declaratory judgments that: 1) Jenks lacks the authority to build a toll bridge in Tulsa County under 69 O.S. 2001 §3006;4 and 2) any taking of property to construct the bridge would violate Okla. Const. art. 2, §235 as an impermissible taking for a private use.

4 In August of 2006, Jenks and the City of Bixby, Oklahoma (Bixby) created appellee, the Arkansas River Bridge Authority (ARBA), a public trust of which Jenks and Bixby are the beneficiaries. On September 5, 2006, Jenks and IVI terminated and released the February 9th agreement, and Jenks, ARBA and IVI (collectively, appellees) entered a new agreement to build the bridge. The September 5th agreement was amended on November 6, 2006, to create the agreement at issue (Bridge Agreement).

5 The Bridge Agreement provided that Jenks would acquire all the property necessary to construct the bridge, and IVI would fund the cost of acquisition. Jenks would issue a construction permit for the north connection of the bridge directly to IVI. The agreement appears to provide that Jenks would also directly lease the property required for the north connection of the bridge to IVI, although it would receive no payments directly from IVI.6 The property required for the south connection of the bridge, which is within the city limits of Jenks, would be leased to ARBA by Jenks for 75 years. ARBA would then sublease the property and issue a construction permit to IVI.

6 IVI was to design, construct, operate, maintain and manage the bridge at its own expense, through financing it would secure. No later than January 1, 2016, IVI was to pay ARBA 15% of the net toll revenues for thirty years and 20% of the net toll revenues for the remainder of the lease. These payments were not to be less than $1,000,000 per year. Additionally, beginning in the eleventh year of the bridge's operation, IVI was to pay an additional 2% of the gross toll revenues into a "Replacement/Maintenance Reserve Fund" for the remainder of the lease term. At the end of the lease term, the bridge itself and the south connection would remain the property of ARBA, and the north connection would remain the property of Jenks.

7 On September 14, 2006, the Coalition filed a second amended petition seeking the further declaratory judgments that: 1) ARBA failed to comply with the requirements for public trusts found at 69 O.S. 2001 §3001 et seq.;7 2) the Oklahoma Transportation Administration did not determine that the proposed bridge would be self-sufficient from toll revenues within thirty years as required by 69 O.S. Supp. 2006 §1705(e)(32);8 3) ARBA failed to properly bid the contract for the proposed bridge according to 60 O.S. Supp. 2004 §176(H),9 69 O.S. Supp. 2006 §1705(n),10 and 69 O.S. 2001 §1101(A);11 and 4) ARBA is attempting to exercise authority outside the boundaries of Jenks or Bixby, in violation of 68 O.S. Supp. 2006 §1370.7.12

8 On November 14, 2006, the appellees moved for summary judgment, and on December 20, 2006, the Honorable David L. Peterson denied the motion. Upon Judge Peterson's retirement, the Honorable Gordon D. McAllister was appointed to preside over the cause early in 2007. On January 11, 2007, the appellees filed a motion to reconsider the trial court's order denying summary judgment. On April 19, 2007, the trial court granted the appellees' motion for summary judgement, making the following findings: 1) the Bridge Agreement was not a franchise requiring voter approval; 2) the Bridge Agreement did not create any indebtedness; 3) any claims of improper use of the power of eminent domain were not ripe because Jenks had not exercised the power of eminent domain; 4) Jenks and ARBA have the power to construct a toll road in Tulsa County; 5) the Competitive Bidding Act is inapplicable to the Bridge Agreement; 6) the ARBA complied with the financing requirements for public trusts; 7) 68 O.S. Supp. 2006 §1370.7 grants ARBA the authority to build a toll bridge; and 8) the ARBA is not exercising any authority outside of the territorial limits of Jenks and Bixby. The Coalition filed its petition in error on May 17, 2007, and we retained the cause on August 13, 2007.

9 THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE APPELLEES.

10 Summary judgment is properly granted when there are no disputed questions of material fact and the moving party is entitled to judgment as a matter of law.13 When summary judgment involves only legal questions, the standard of review of a trial court's grant of summary judgment is de novo.14

11 This cause presents Constitutional questions and questions of statutory interpretation. The Constitution is the bulwark to which all statutes must yield.15 In construing and applying constitutional provisions, the intent of the framers and the people adopting it must be given effect.16 Absent an ambiguity, the intent is settled by the language of the provision itself, and the courts are not at liberty to search beyond the instrument for meaning.17 The primary goal of statutory construction is to ascertain and follow the intent of the legislature.18 The words of a statute will be given their plain and ordinary meaning unless it is contrary to the purpose and intent of the statute when considered as a whole.19

Neither Jenks Nor ARBA Has Authority to Build, Maintain, and Operate A Toll Bridge Outside of the Corporate Boundaries of Jenks and Bixby.

12 The appellees have argued that the agreement to build, maintain, and operate a toll bridge does not constitute a franchise because ARBA is not a municipality, and possesses specific statutory authority to carry out a project of this nature. The Coalition responds that: 1) ARBA has no authority outside the corporate boundaries Jenks and Bixby under 68 O.S. Supp. 2006 §1370.7; and 2) ARBA may not authorize the construction of a toll road in Tulsa under 69 O.S. 2001 §3006 and 69 O.S. 2001 §3016. We agree with the Coalition.

13 The authority for combinations of municipalities to form public trusts for the purpose of creating a toll expressway is found at 69 O.S. 2001 §3001, in the "Roads, Bridges, and Ferries" Title of the Oklahoma Statutes, which provides in pertinent part:

Any county or combination of cities, counties or towns, by resolution of their governing boards, may jointly create a public trust for the purpose of planning, financing, constructing, maintaining and operating a toll expressway. . . .20

Title 69 O.S. 2001 §3006 provides:

The trustees shall negotiate a contract or contracts to accomplish the purposes enumerated in Section 1 of this act; however, prior to entering into a construction contract, it will be necessary for the board of trustees of such trust to obtain the consent of the governing body of any county, city or town of more than one thousand (1,000) population, according to the last preceding Federal Decennial Census, in which such expressway or any part thereof may be located. [Emphasis added.]

Title 69 O.S. 2001 §3016 provides in pertinent part:

. . . [T]he provisions of this act shall not apply to public trusts created or to be created for the purpose of financing, constructing, operating and maintaining toll expressways in counties having a population of five hundred thousand (500,000) or more, according to the latest Federal Decennial Census.

14 The authority for combinations of municipalities to form a transportation authority for the purpose of financing a toll bridge is found at 68 O.S. Supp. 2006 §1370.7, in the "Revenue and Taxation" Title of the Oklahoma Statutes, which provides in pertinent part:

(A) Any combination of cities, towns and counties, by resolution of their governing boards, may jointly create a transportation authority or regional economic development authority pursuant to the provisions of Section 176 of Title 60 of the Oklahoma Statutes21 for the purpose of planning, financing and constructing transportation or regional economic development projects located within the boundaries of such cities, towns or counties . . . The boundaries of the authority shall be coterminous with the boundaries of the cities, towns or counties creating the authority.

. . .

(J) A transportation authority created pursuant to the provisions of subsection A of this section may provide for the financing of a toll bridge utilizing any revenue measures available pursuant to subsections A through I of this section in combination with revenue derived from toll charges. . . . [Emphasis added.]

The appellees urge us that ARBA is a transportation authority formed under 68 O.S. Supp. 2006 §1370.7, and the Coalition argues that ARBA is a public trust formed under 69 O.S. 2001 §3001 et seq.

15 Legislative acts are to be construed in such manner as to reconcile the different provisions, render them consistent and harmonious, and give intelligent effect to each.22 For the purposes of this cause, we find there is no material difference between the terms "toll expressway" and "toll bridge."23 Title 68 O.S. Supp. 2006 §1370.7(J) is not a separate source of statutory authority to create a public trust for the purpose of constructing a toll road, but instead a statute that authorizes public trusts organized under 69 O.S. 2001 §3001 et seq. to use additional methods of financing a toll road. Therefore, ARBA is a public trust organized to construct a toll road.

16 However, even if we were to find ARBA to be a public trust formed under the separate authority of 68 O.S. Supp. 2006 §1370.7(J) and not subject to 69 O.S. 2001 §3001 et seq., our result would not be altered. The Bridge Agreement violates both statutes. Title 69 O.S. 2001 §3006 requires a public trust to obtain the approval of the governing body of any city with a population greater than 1,000 through which the toll expressway is to pass.24 It is undisputed that ARBA, which was formed by Jenks and Bixby, did not seek the consent of the governing body of Tulsa ---- a city with a population of 382,872,25 in which the north connection of the bridge was to be located. It is also undisputed that ARBA violates 69 O.S. 2001 §3016, by seeking to build a toll bridge in Tulsa County, a county with a population of 563,299 at the time of the 2000 Federal Decennial Census.26 Additionally, the Bridge Agreement's purported grant of authority to build the north connection of the bridge on property outside the boundaries of Jenks and Bixby also violates 68 O.S. Supp. 2006 §1370.7(A). 17 The appellees apparently believe that they can avoid the foregoing requirements by the provisions in the Bridge Agreement where the ARBA grants IVI the right to build the bridge and the south connection, and Jenks grants IVI the right to build the north connection.27 This purported division of duties has no effect. As we have stated, ARBA may not exercise authority outside the boundaries of Jenks and Bixby, and Jenks has no streets or roadways on the north side of the bridge. The Bridge Agreement oversteps the authority of both Jenks and ARBA, and thus the trial court erred in granting summary judgment to the appellees.

* * *

http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=2008+OK+4

Outcome: ¶18 The intention of the Legislature in permitting the creation of public trusts and transportation authorities for toll road construction is that because toll roads and bridges by their nature connect various municipalities, towns, and counties, such sovereigns must consolidate their authority to construct toll roads and bridges. However, the Legislature intended that the municipalities, towns, or counties that form the public trusts or transportation authorities be the ones in which the toll road or bridge is to be constructed. If we were to adopt the appellees' arguments, what would prevent Jenks or ARBA from granting IVI the right to build a toll bridge across the Oklahoma River in Oklahoma County?

¶19 Summary judgment is properly granted only when there are no disputed questions of material fact and the moving party is entitled to judgment as a matter of law. Neither Jenks nor ARBA is entitled to judgment as a matter of law because the north connection of the bridge does not connect streets or roadways within the City of Jenks. Therefore, the trial court erred in granting the appellees' motion for summary judgment. We reverse the order of the district court and remand with directions to grant summary judgment in favor of the Coalition.28

DISTRICT COURT ORDER REVERSED AND REMANDED.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None