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Date: 04-07-2010
Case Style: E & F Cox Family Trust, et al. v. City of Tulsa, et al.
Case Number: CJ-2008-4850
Judge: Dana Kuehn
Court: District Court, Tulsa County, Oklahoma
Plaintiff's Attorney: Kirsten Bernhardt, Tulsa, Oklahoma; Hugh Hood, Tulsa, Oklahoma; and Alfred K. "Kent" Morlan, Morlan & Associates, P.C., Tulsa, Oklahoma
Defendant's Attorney: Deirdre Dexter, City Attorney, and Gerald Bender and Mary Lockhart, Assistance City Attorneys, City Attorney's Office, Tulsa, Oklahoma for the City of Tulsa and Fred Dorwart, John Clayman, J. Michael Medina and Margaret Kobos, Fred Dowart Law Firm, Tulsa, Oklahoma for Intervenors.
Description:
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
AND BRIEF IN SUPPORT
COME NOW Plaintiffs, E & F Cox Family Trust; Michael Samara; T.E. Morlan; Better Price Warehouse Sales Company, Inc.; and Koenig Properties, Inc.; pursuant to Rule 13 of the Rules for District Courts of Oklahoma, and move for Summary Judgment in this cause in their favor and against Defendants. Plaintiffs seek declaratory judgment to the effect that the Stadium Assessment District is ultra vires, and unconstitutional. Plaintiffs seek permanent injunction against the enforcement of the assessment in question. Plaintiffs also assert that they are entitled to relief under
42 U.S.C. § 1983 in that their Petition alleged violation of rights established by the United States Constitution, and attorney’s fees and costs under
42 U.S.C. § 1988. In support of their Motion for Summary Judgment Plaintiffs show as follows:
STATEMENT OF THE CASE
This litigation involves an objection by certain property owners to the creation of an assessment district by the City of Tulsa. The district at issue is titled “Tulsa Stadium Improvement District No. 1” and encompasses an area of roughly 1.5 square miles within the Inner Dispersal Loop circling downtown. The property owners within the district are being assessed approximately three million dollars ($3,000,000.00) per year for a period of 30 years, for a total of approximately ninety million dollars ($90,000,000.00). Approximately two million dollars ($2,000,000.00) annually is intended to pay the indebtedness of the Tulsa Stadium Trust for the interest and principal on a twenty-five million dollar ($25,000,000.00) revenue bond it issued toward the construction costs of a baseball stadium for the Tulsa Drillers. Approximately one million dollars ($1,000,000.00) per year is separately assessed for unspecified “services” within the district.
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.
PARTIES TO THE ACTION
The Parties to this action fall into three categories: 1) Plaintiff property owners, 2) Original Defendants, and 3) Intervenors on the side of the defense.
The Plaintiff Property owners are the E & F Cox Family Trust; Michael Samara; T.E. Morlan; Better Price Warehouse Sales Company Inc.; and Koenig Properties, Inc.
The Defendants are the City of Tulsa and the then Mayor of Tulsa, Kathy Taylor in her official capacity.
Intervenors are also property owners within the district, and include the Mayo Hotel & Lofts, LP, McFarlin Building, LLC, Wright Building Annex, LLC, Midco Building, LLC, First Street Lofts, LLC, Reunion Investments Limited, LLC, Team Properties, LLC, and the Williams Companies.
UNDISPUTED MATERIAL FACTS
1. Defendant, City of Tulsa, is a municipal corporation located in the State of Oklahoma.
2. Plaintiffs are owners of real property located inside the Tulsa Stadium Improvement District, referenced hereafter.
3. On July 10, 2008, the City Council of the City of Tulsa (“Council”) adopted a resolution creating the "Tulsa Stadium Improvement District No. 1". 1
4. The boundary lines of the district are the highways surrounding downtown Tulsa known as the Inner Dispersal Loop, or IDL, enclosing an area of approximately one and a half square miles. (See:
Map)
5. The purpose of the Stadium Improvement District is to make two assessments: one to service debt incurred by a public trust for the construction of a baseball stadium, and the other to provide unspecified services to the assessed district.
2
6. The stadium (“ONEOK Field”) is intended as the new home for the Tulsa Drillers, a minor league professional baseball team.
7. The first part of the assessment is $0.043 per square foot of real property together with the area of all improvements thereon which is intended to be given to the Tulsa Stadium Trust to pay the interest and principal indebtedness on revenue bonds issued for $25 million of the construction costs of the stadium.
3
8. The $0.043 portion of the assessment for the debt incurred in the construction of the stadium will amount to a total payment of approximately $60 million by the assessed property owners over the 30 year period of the assessment.
9. The second part of the assessment is $0.022 per square foot of real property together with the area of all improvements thereon to provide unspecified “services” to the district.
10. The $0.022 portion of the assessment for unspecified “services,” will amount to $1.1 million per year, or a total payment of $33 million by the assessed property owners over the 30 year period of the assessment.
11. The $0.022 per square foot for “services” is unrelated to the stadium.6
12. On July 11, 2008, Plaintiffs filed the present action challenging the creation of the assessment district.
13. On September 18, 2008, the Council adopted an
ordinance approving the creation of the Tulsa Stadium Trust.
14. The function of the Trust is primarily to acquire, construct, own and operate and sell the baseball stadium, and do the same for amenities and facilities necessary or convenient thereto.
15. The Resolution creating the district states that the City of Tulsa shall have no financial liability or indebtedness upon any actions of the Trust.9
16. Tulsa Baseball, Inc, owner of the Tulsa Drillers, has signed a thirty year lease with the Tulsa Stadium Trust for the use of the stadium in which the Drillers will pay an annual rent of one hundred fifty thousand dollars ($150,000) with an option to renew for up to ten additional years.
17. On November 20, 2008, the Council adopted a resolution approving the issuance of revenue bonds by the Tulsa Stadium Trust in the total principal amount of $25,000,000 (“the Bonds") to finance a portion of the construction costs of the stadium.
18. On December 4, 2008, the Tulsa Stadium Trust issued and sold the $25 million Stadium Improvement District Revenue Bond to the Tulsa Community Foundation, a public charity which now owns the Bond.
19. The $.043 per square foot portion of the assessment will be given to the Trust and used to pay its indebtedness on the bond owned by the Tulsa Community Foundation.12
20. The Stadium Improvement District exempts property owned by religious organizations and used primarily for religious purposes.
TABLE OF AUTHORITIES
United States:
Constitutional and Statutory:
U.S. Const., Amendment 1
U. S. Const., Amendment 5
U. S. Const., Amendment 14
Cases:
Bob Jones Univ. v. U. S., 461 U.S. 574, 591 (1983)
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), 109 S.Ct. 890
Oklahoma
Constitutional and Statutory:
Okla. Const. art 2, § 23
Okla. Const. art 2, § 24
Okla. Const., art. 10, § 7
Okla. Const. art 10 § 26 (a)
Okla. Stat. title 11 § 39-103
Okla. Stat. title 11 § 39-103.1
Okla. Stat. title 11 § 39-104
Okla. Stat. title 11 § 39-106
Okla. Stat. title 11 § 39-108
Okla. Stat. title 11 § 39-110
Okla. Stat. title 62 § 654 (a)
Cases:
American-First National Bank v. Peterson, 1934 OK 695, 38 P.2d 957, 169 Okla. 588
Application of Erick Hospital District, 1968 OK 112, 444 P.2d 216.
Bonney v. Smith, 1944 OK 149, 147 P.2d 771, 194 Okla. 106
City of Idabel v. School Dist. No. Five, 1967 OK 202, ¶ 7, 434 P.2d 285
The City of Lawton v. Akers, 1958 OK 292, 333 P.2d 520
City of Tulsa v. McCormick 1917 OK 196, 63 Okl. 238, 164 P. 985
Gilfillan et. al. v. City of Bartlesville 1915 OK 302, 46 Okl. 428, 148 P. 1012, 1013)
Harrington et al. v. City of Tulsa, 1934 OK 711, 170 Okl. 20, 39 P.2d 120
Lance v. City of Sulphur, 1972 OK 145, 503 P.2d 867
Pauls Valley National Bank v. Foss, 1924 OK 552, 226 P. 567, 99 Okla. 178
Public Service Company of Oklahoma v. Northwest Rogers County Fire Protection
District, 1983 OK 96, 675 P.2d 134, 138 (1983)
Rollow v. City of Ada, 1990 OK 59, 794 P.2d 1211
Treatises
48 Am.Jur. Sec. 28, Special or Local Assessments
ARGUMENT AND AUTHORITIES
I.
THE STADIUM ASSESSMENT DISTRICT WAS CREATED IN VIOLATION OF THE TAKING CLAUSES OF ARTICLE II §§ 23 AND 24 OF THE OKLAHOMA CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
A. 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.
It is a fundamental principal of constitutional law that the government cannot take private property without just compensation. See,
Okla. Const. Article II § 23 (“No private property shall be taken or damaged for private use, with or without compensation…”);
Okla. Const. Article II § 24 (“Private property shall not be taken or damaged for public use without just compensation….”);
U.S. Const. Amend V (“…nor shall private property be taken for public use, without just compensation….”);
" U.S. Const. Amend. XIV (“…nor shall any State deprive any person of life, liberty, or property, without due process of law).
The authority of a municipality to assess property owners for local improvements is not an inherent power of the government, but is based entirely upon statute. See, the
Improvement District Act, 11 Okla. Stat. § 39-101 et seq. The statutes granting municipalities the power to assess property owners must be strictly construed in favor of the property owner.
Lance v. City of Sulphur, 1972 OK 145, 503 P.2d 867;
Bonney v. Smith, 1944 OK 149, 147 P.2d 771, 194 Okla. 106;
American-First National Bank v. Peterson, 1934 OK 695, 38 P.2d 957, 169 Okla. 588;
Pauls Valley National Bank v. Foss, 1924 OK 552, 226 P. 567, 99 Okla. 178.
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 assessment district at issue contains two separate assessments. The first $0.043 per square foot is to service the debt for the building of a baseball stadium, discussed elsewhere in this brief. The second assessment of $0.022 per square foot (one point one million dollars annually) gives no purpose at all except to say it will be for services as yet undecided. The language purporting to provide a purpose for this portion of the assessment is as follows:
An additional one point one million dollars ($1,100,000.00) annually is assessed for cost of services which are described as follows: “The services could include: maintenance, cleaning, security, shuttle service, upkeep, marketing, management, other services which confer special benefits to the property within the District by preserving, enhancing, or extending the value or usefulness of any improvement in the District, whether or not the improvement was financed or constructed pursuant to the Improvement District Act.”
See, Project Budget at Subpart II. B., of the Plan Summary attached as Exhibit
A of the Resolution 7571. [Emphasis added.]
The portion highlighted in bold above simply mirrors the text of
Okla. Stat. title 11, chap. 1, §39-103.1 A which provides in pertinent part:
In addition to those purposes set out in
Section 39-103 of this title, the governing body of any municipality having a population of more than one thousand five hundred (1,500) may create one or more districts and levy assessments for the purpose of providing or causing to be provided any maintenance, cleaning, security, shuttle service, upkeep, marketing, management or other services which confer special benefits upon property within the district by preserving, enhancing or extending the value or usefulness of any improvement described in
Section 39-103 of this title, whether or not the improvement was financed or constructed pursuant to this act and such governing body may exclude or modify such assessments according to benefits received on properties which are exempt from ad valorem taxation, except those assessments provided for by
Section 39-103 of this title. [Emphasis added.]
An assessment such as the one at issue is void on its face. Not only does it not describe what services are to be provided, it doesn’t even describe what “improvement” is to be preserved or enhanced. The ordinance specifically states that the $0.22 portion is to be assessed even if the stadium were never built. This fund is nothing more than a one point one million dollar annual discretionary fund for the City of Tulsa to use in the general downtown area.
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.
It offends the most basic principles of law to allow a municipality to assess a group of property owners to create a fund to provide unspecified services for an unspecified improvement, and rather, simply quote the language of the statute listing all possible permissible purposes. To do so renders the statute meaningless. If an assessment such as this were allowed to stand, then any municipality could assess any group of property owners any sum of money for no stated purpose whatsoever. The creation of the assessment district is an illegal act when it provides no stated purpose for the one point one million dollar annual assessment, effectively using the tool of assessment to create a slush fund for the City to use at will. With no stated purpose for this assessment, the Ordinance is unconstitutional on its face and the Court should grant Plaintiff’s Motion for Summary Judgment and prohibit the City from taking any action in furtherance of the assessment district.
B. It is unconstitutional and a violation of state law to assess a group of property owners for the cost of building a professional baseball stadium which by its nature benefits the municipality in general.
The Oklahoma Supreme Court has said,
It is fundamental that private property cannot be taken for a private or public use without compensation. Art. II, §§ 23 and 24 Oklahoma Constitution. We think these provisions of the constitution are applicable when a city attempts to impose a special assessment against property which will not be benefited by the improvement.
The City of Lawton v. Akers, 1958 OK 292, ¶ 22, 333 P.2d 520 [Emphasis added].
Special assessments may be levied only against property directly benefited by the improvement. In
Application of Erick Hospital District, 1968 OK 112, 444 P.2d 216, the Court explained that assessments “must be based upon benefits to the assessed property from the improvement involved.”
Erick at 219.
The Court in Erick further explained that local improvements “must be limited to such improvements as are … special and peculiarly beneficial to the property affected and thus to its owners as contra distinguished from such as are only beneficial to property in general or to the general public.” [Emphasis added]. Erick at 219, (quoting its prior decision in
Gilfillan et. al. v. City of Bartlesville (1915), 46 Okl. 428, 148 P. 1012, 1013).
Before the expense of installing a local improvement can be assessed against property in a district, it is essential that the improvement should confer substantial benefit upon the property within the district. The essential element of a local improvement is that it shall benefit the property upon which the costs are assessed in the manner local in its nature and not enjoyed by the property generally in the city.
(emphasis added). Erick at 219, quoting
Harrington et al. v. City of Tulsa (1934) 170 Okl. 20, 39 P.2d 120. i The Erick Court continued:
Clearly, the assessments provided for in this act are not intended to be "general" levies exacted in return for the general benefits of government. Insofar as the provisions of this act are concerned, the real property against which the assessments are to be levied (representing those who must pay the assessments in order to prevent sale of the property for delinquent assessments as contemplated by the act) receives absolutely nothing in the way of "benefits" in return for the money paid as assessments under the act. We believe that, in the circumstances, the levying and collecting of the assessments as provided for in this act would constitute the taking of private property without just compensation, in violation of the provisions of
Section 24 of Article II of the Constitution of the State of Oklahoma.
Erick supra, at ¶ 23. In Erick, the Court struck down an assessment district intended to build an area hospital, because as the Court found, the hospital was for the general benefit of the city and was not a local improvement for the benefit of the assessed properties.
In
Public Service Company of Oklahoma v. Northwest Rogers County Fire Protection District, 1983 OK 96, 675 P.2d 134, 138 (1983), the Oklahoma Supreme Court explained
The term 'local improvement' refers only to improvements which are in fact or, by a proper exercise of legislative discretion, may be determined to be, specially or uniquely beneficial to the property affected...Local improvements which benefit a particular district with a city also may incidentally benefit the entire city...so long as the benefit to the district substantially exceeds the benefit received by the city... [emphasis added].
In that case the Court found that an assessment to fund a fire protection district was a “local improvement” because the fire protection would exclusively and specifically benefit the district.
“[The legislature] cannot by its fiat make a local improvement of that which in its essence is not such an improvement, and it cannot by its fiat make a special benefit to sustain a special assessment where there is no special benefit.”
The City of Lawton v. Akers, 1958 OK 292, ¶ 23, 333 P.2d 520. “It is not within the power of the Legislature to authorize, or the City to impose, a special assessment upon properties not benefited.” Id at ¶27.
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.13
A baseball stadium seating thousands of spectators and intended as the home of a professional baseball team is an inherently general improvement for the benefit of the public and the City at large. A governing body cannot transform a fundamentally general improvement into a local improvement simply by speculating that some possible benefit might accrue to nearby properties. The creation of an assessment district forcing a group of local property owners to pay millions of dollars every year for something that is fundamentally for the benefit of the public at large is illegal and a taking without just compensation. For this reason, the Court should grant Plaintiff’s Motion for Summary Judgment, and declare the assessment district to be unlawful.
C. This assessment constitutes an unconstitutional taking without just compensation because the only benefit ascribed to the subject properties is a potential and purely speculative future economic benefit and not an “actual, physical and material” benefit peculiar to the assessed properties as required under Oklahoma law.
Section 39-103 of the Improvement District Act only permits assessment for “improvements that confer special benefit upon property within the district.”
In
The City of Lawton v. Akers, 1958 OK 292, 333 P.2d 520, the Oklahoma Supreme Court found that residential landowners did not directly benefit from proposed highway improvements. “It has been ruled that benefit to property from a public improvement to sustain a special or local assessment must be actual, physical, and material, and not merely speculative or conjectural. In order to justify the assessment, the benefit must be substantial, certain, and capable of being realized within a reasonable time.” (Akers at ¶ 18, emphasis added, quoting 48 Am.Jur. Sec. 28, Special or Local Assessments).
Defendants and Intervenors have never even alleged any special benefit to property within the district except for the vague, purely speculative hope that property values might eventually go up within the district. Even if such a remote and speculative benefit were to actually materialize, the increase in property values or economic prosperity could not be tied directly to the construction of a stadium. See, the comments of Mark Sneed, the economics expert testifying at the meeting of the City Council.iv The speculative nature of the improvement was directly acknowledged at the City Council meeting by Mr. Sneed, and also by Stanley Lybarger, chairman of the Tulsa Stadium Trust and President and CEO of the Bank of Oklahoma,v
Not only is the benefit ascribed to these properties wildly speculative, uncertain, remote, not linked to the amount assessed, and impossible to trace directly to the stadium, the only means by which plaintiff property owners could realize that benefit would be to sell or mortgage the properties. A “benefit” to property which can only be realized by the owner giving up ownership of the property cannot possibly be a permissible benefit under the assessment statutes. Many of these property owners have established businesses or property that has been with their families for generations. The City proposes to place a staggeringly high burden upon these properties, with the only potential benefit realized if each of the owners ultimately sacrifices ownership.
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.
D. A city may not assess property owners for the purpose of reimbursing a private purchaser of revenue bonds or to subsidize a privately owned baseball franchise.
Our Constitutions, both state and federal, place the ownership of private property as the cornerstone of liberty. Both state and federal constitutions limit the ability of government to take private property.14 Specifically,
Okla. Const. art 2, § 23 Article 2, § 23 of the Oklahoma Constitution provides:
No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law. [Emphasis added.]
In the present case, rather than hold a general obligation bond issue election to build the desired baseball stadium, the City created a public trust which sold revenue bonds to obtain the necessary funds. “Revenue bonds” are bonds issued by a municipality to finance a specific public works project and supported by the revenues of that project. Revenue bonds may be issued pursuant to
Okla. Stat. title 62 § 654.
The Trust then leased the stadium to a private business (Tulsa Baseball, Inc.) for $150,000 annually. See, Ballpark Lease Agreement, attached as Exhibit “4”. The income from this lease is less than 10% of the approximately two million dollars ($2,000,000) the district is being annually assessed to pay the principal and interest for the twenty-five million dollar revenue bond.
It is possible that
62 O.S. § 654 would permit the building of the baseball stadium by revenue bonds if the bond holders were then reimbursed by the flow of revenue from the stadium. In the instant case, however, the revenues from the stadium will not support the project. The funds to service the debt to the purchaser of the bond, rather than coming from the project itself, are coming from the pockets of surrounding property owners.
In
Rollow v. City of Ada, 1990 OK 59, 794 P.2d 1211, the Court held that a City could not assess property owners to pay worthless bonds held by private parties. In that case, just as in the present case, the City created a trust to issue revenue bonds to fund certain improvements, i.e., parking facilities. It was thought that the parking facilities would themselves generate enough income to repay the bonds, but they did not. In response to the lack of sufficient revenue from the project itself, the city then assessed property owners for the funds to repay the bonds. The Court found that when the property did not provide an income stream to support the bonds, the bonds were essentially worthless, and it was a taking without just compensation to require property owners to reimburse the bond holders.
In the current case, the money assessed from the district will not go directly to fund any improvement. The bonds were issued, the contractors paid, and the stadium has been built. As in Rollow the assessment monies will simply be used to reimburse the private parties who purchased the bonds. The property itself will not support the bonds, and so the assessment district was created to generate an income stream to reimburse the bondholder.
The taking of property from the plaintiff property owners to benefit the bondholder is a taking of property for private use, contrary to Article II § 23 of the Oklahoma Constitution.
ONEOK field, the stadium at issue, is being leased to a private company, Tulsa Baseball, Inc., at a rate that is far less than what is required to service the bonded indebtedness for the costs of the construction. The funds needed to construct the stadium have been provided by the bondholder who purchased the bonds. The purchase of the bonds was made after this lawsuit had been filed, with full knowledge of the objections of the property owners in question. It is a violation of state and federal constitutions to take the private property of the Plaintiffs and the other property owners in the District for the purpose of supporting a private baseball franchise, and to reimburse the bondholder who chose to buy otherwise nearly worthless revenue bonds. For this reason, the creation of the assessment district was an ultra vires act of the Tulsa City Counsel, and should be declared as such by this Court.
II
THIS ASSESSMENT DISTRICT VIOLATES THE DUE PROCESS CLAUSE OF ARTICLE II § 7 OF THE OKLAHOMA CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES BECAUSE The shape of the Assessment District in relation to the placement of the stadium is arbitrary and bears no rational relationship to any benefits conferred upon the assessed properties.
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 City of Tulsa v. McCormick it was held:
An ordinance levying assessments to pay for the cost of constructing certain paving upon the streets of the city of Tulsa which creates arbitrary differences in the property to be assessed without regard to the benefits received and which permits certain property benefited to wholly escape assessment violates section 7, art. 2, Wms. Ann.Const., and the Fourteenth Amendment to the Constitution of the United States.
City of Tulsa v. McCormick, 1917 OK 196, 63 Okl. 238, 164 P. 985, in the syllabus of the Court.
The Oklahoma Supreme Court directly addressed this issue in
Rollow v. City of Ada, supra,¶ 8:
A substantial amount of property, which directly benefited by the improvement district, was selectively excluded from taxation. Only businesses whose property abuts the improvements were assessed. Other businesses which would realize an equal benefit were excluded. The teaching in the City of Lawton is that property may not be included within an improvement district which will not benefit from the district, and that any attempt to assess such property is an arbitrary, oppressive, ultra vires exercise of municipal power. Likewise, it is not within the power of the Legislature to authorize, nor of the city to exclude, property which is directly benefited from the district while increasing the rates for those properties included in the assessment.
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.
The Stadium Assessment District is both over-inclusive and under-inclusive. It includes such property as the BNSF railroad, the Tulsa Day Center for the Homeless, the Salvation Army, and many other non-profit organizations. It equally impacts vacant lots and hotels, restaurants and warehouses, professional office buildings and manufacturing facilities. It also includes many public properties such as the Tulsa County jail, Tulsa City Hall, the Tulsa Municipal Court, the Tulsa County District Court, the Tulsa County Central Library, the State Office Building, the Convention Center, and the Tulsa County Sheriff’s building, just to name a few.16 At the same time, it fails to include properties located literally across the street from the stadium.
Because of the arbitrary and capricious designation as to which properties must pay, and which properties wholly escape any obligation, the creation of this assessment district is illegal on its face and in direct violation of the Fourteenth Amendment to the Constitution of the United States, and Article II § 7 of the Oklahoma Constitution, as stated by the Oklahoma Supreme Court. As a matter of law, this assessment is unconstitutional and must be barred.
III
This assessment violates Article 10 §26 of the Oklahoma Constitution requiring that three fifths of the electorate vote to approve long term obligations of Municipalities.
Article 10 §26 of the Oklahoma Constitution states in pertinent part
Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose…
The Oklahoma Supreme Court has stated “Hardly ever has a constitutional mandate been couched in clearer, plainer, or more emphatic language than is contained in this section. There is nothing ambiguous about it.” Public Serv. Co. v. City of Tulsa, 1935 OK 904, ¶ 10; 50 P.2d 166
In the Public Serv. Co. case, supra, the Court observed, “Could it be that the intention was to limit the power of the city officials to tax the people for governmental functions, but that at the same time they could bankrupt the citizens, if they chose, by forcing upon them a costly array of municipal luxuries? Such would be the case if we were to agree with the principle urged by plaintiff.” Id, at ¶ 12.
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.
IV
Exclusion from the assessment of property owned by religious organizations constitutes an impermissible support of religion in violation of the United States Constitution.
The Stadium Assessment District excludes “property owned by a religious organization and used primarily for religious purposes.” This language comports with 11 Okla. Stat. §39-104 which provides in relevant part:
The district shall include, for the purpose of assessment, all the property which the governing body determines is benefited by the improvement or improvements, including property utilized for public, governmental, burial, or charitable purposes, except property of any religious organization used primarily for religious purposes, or of the United States, or any agency, instrumentality or corporation thereof, in the absence of consent of Congress… [Emphasis added].
This provision went into effect in 2003, and modified the previous statute which had stated just the opposite, that the district should include property utilized for public, governmental, burial, charitable or religious purposes. The legislature passed this amendment following an opinion by the Oklahoma Attorney General (1982 OK AG 142) stating that assessment districts must include the property of churches when such property was benefitted by the improvement.
In passing the amendment to exclude the property of religious organizations used primarily for religious purposes, the legislature failed to recognize that §39-104 as previously written simply reflected constitutional necessity. The main reason such property had to be included was not so much because of the language of § 39-104, but because of the fundamental constitutional issues arising out of the exclusion of such property. The statute was originally written to be in compliance with the constitution, a fact overlooked by the legislature when it changed the language to have the opposite result. Both the Tulsa ordinances at issue, and Oklahoma Stat. title 11 § 39-104 are in violation of the First Amendment of the United States Constitution.
The United States Supreme Court expressly addressed this issue and held that the exclusion of property owned by a church or religious organization amounts in an impermissible support of religion in violation of the United States Constitution. Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) 109 S.Ct. 890. The Court found that “when...government directs a subsidy exclusively to religious organizations that is not required by the Free Exercise Clause of the First Amendment and that either burdens nonbeneficiaries markedly or cannot reasonably be seen as removing a significant state-imposed deterrent to the free exercise of religion, it cannot be viewed as anything but impermissible state sponsorship of religion” Texas Monthl, 489 U.S. at 2. "Every tax exemption constitutes a subsidy that affects non-qualifying taxpayers, forcing them to become 'indirect and vicarious donors." Texas Monthly, at , quoting Bob Jones University v. United States, 461 U.S. 574, 591 (1983)
In the case at hand, the City of Tulsa has specifically excluded from the assessments “property owned by a religious organization and used primarily for religious purposes.” Resolution of the Tulsa City Counsel, No. 7571, enacted July 23, 2008. There is no rational basis for assuming that every other property in the district would gain some direct and special benefit from the improvements, but property owned by a religious organization would not. If the church benefits from the improvement, then the church must pay its fair share the same as everyone else. If the costs attributable to the stadium and the “services” fund are equally divided among the benefitted properties, then the exclusion of all of the church property within the assessment district means that each of the other properties are effectively subsidizing the churches. The exclusion from the assessment of property owned by religious organizations violates the first amendment of the United States Constitution and renders the assessment district void. For the reason that the creation of this assessment district was unconstitutional it should be declared null and void by the Court.
CONCLUSION
For the reasons stated above, the proposed assessment by the City of Tulsa under the Tulsa Stadium Improvement District No. 1 is contrary to both state and federal law and must be barred. Plaintiffs are entitled to declaratory judgment to the effect that the Stadium Assessment District is ultra vires, and unconstitutional. Defendants should be permanently enjoined from taking any action in furtherance of the assessment in question. Plaintiffs should also be awarded relief under 42 U.S.C. § 1983 and attorney’s fees and costs under 42 U.S.C. § 1988.
Appendix of Statutes and Constitutional Provisions
A.
U.S. Const. Amend. I:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
B.
U.S. Const. Amend. V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
C.
U.S. Const. Amend. XIV, § 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
D.
Okla. Const. Art. 2, § 23:
No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.
E.
Okla. Const. Art. 2, § 24:
Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken. Such compensation shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law. Provided however, in no case shall the owner be required to make any payments should the benefits be judged to exceed damages. The commissioners shall not be appointed by any judge or court without reasonable notice having been served upon all parties in interest. The commissioners shall be selected from the regular jury list of names prepared and made as the Legislature shall provide. Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner divested. When possession is taken of property condemned for any public use, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of such compensation. The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question.
F.
Okla. Const., Art. 10, § 7:
The Legislature may authorize county and municipal corporations to levy and collect assessments for local improvements upon property benefited thereby, homesteads included, without regard to a cash valuation.
G.
Okla. Const., Art. 10, § 26 (a)
Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose, nor, in cases requiring such assent, shall any indebtedness be allowed to be incurred to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness:
Provided, that if a school district has an absolute need therefor, such district may, with the assent of three-fifths of the voters thereof voting at an election to be held for that purpose, incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) but not exceeding ten percent (10%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness, for the purpose of acquiring or improving school sites, constructing, repairing, remodeling or equipping buildings, or acquiring school furniture, fixtures or equipment; and such assent to such indebtedness shall be deemed to be a sufficient showing of such absolute need, unless otherwise provided by law. Provided further, that if a city or town has an absolute need therefor, such city or town may, with the assent of three-fifths of the voters thereof voting at an election to be held for that purpose, incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) but not exceeding ten percent (10%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness, and such assent to such indebtedness shall be deemed to be a sufficient showing of such absolute need unless otherwise provided by law. Provided, further, that any county, city, town, school district, or other political corporation, or subdivision of the state, incurring any indebtedness requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty-five (25) years from the time of contracting the same, and provided further that nothing in this section shall prevent, under such conditions and limitations as shall be prescribed by law, any school district from contracting with:
(1) certificated personnel for periods extending one (1) year beyond the current fiscal year; or
(2) a school superintendent for periods extending more than one (1) year, but not to exceed three (3) years beyond the current fiscal year.…
H.
Okla. Stat. title 11 § 39-103 : Creation of Improvement Districts - Purpose - Contents
The governing body of any city may create one or more districts for the purpose of making or causing to be made any improvement or combination of improvements that confer special benefit upon property within the district. Such improvement or combination of improvements may include the following, without limitation because of enumeration:
1. Acquisition of property or interest in property when necessary for any of the purposes authorized by the Improvement District Act;
2. Opening, creating, widening and extending or altering of streets to improve paving, and surfacing, constructing and reconstructing gutters, curbs, sidewalks, crosswalks, driveway entrances and structures, drainage facilities, and service connections from sewers, water, gas, electricity and other utility mains, conduits or pipes;
3. Constructing or improving main and lateral storm water drains and sanitary sewer systems and facilities;
4. Installation or improvement of street lights and street lighting systems;
5. Construction or improvement of water mains and waterworks systems;
6. Improvement of parks, playgrounds and recreational facilities;
7. Improvement of any street, parking or other facility by landscaping, or planting of trees, shrubs and other plants;
8. Constructing or improving dikes, levees and other flood control works, gates, lift stations, bridges and streets appurtenant thereto;
9. Constructing or improving vehicle and pedestrian bridges, overpasses and tunnels;
10. Constructing or improving retaining walls and area walls on public ways or land abutting thereon;
11. Constructing or improving property for off-street parking facilities, including construction and equipment of buildings thereon;
12. Constructing or improving pedestrian malls; or
13. Constructing or improving offsite facilities or infrastructure serving all or a portion of land within a district; notwithstanding that, such facilities or infrastructure may also serve areas outside a district, but subject to cost apportionment requirements of subsection A of Section 39-110 of this title.
I.
Okla. Stat. title 11 §39-103.1 A Additional Improvement Districts - Assessments - Objections - Termination:
In addition to those purposes set out in
Section 39-103 of this title, the governing body of any municipality having a population of more than one thousand five hundred (1,500) may create one or more districts and levy assessments for the purpose of providing or causing to be provided any maintenance, cleaning, security, shuttle service, upkeep, marketing, management or other services which confer special benefits upon property within the district by preserving, enhancing or extending the value or usefulness of any improvement described in
Section 39-103 of this title, whether or not the improvement was financed or constructed pursuant to this act and such governing body may exclude or modify such assessments according to benefits received on properties which are exempt from ad valorem taxation, except those assessments provided for by Section 39-103 of this title. In addition, such districts may also be used to fund maintenance, management, marketing and other services being provided through an active Main Street Program recognized as such by the Oklahoma Department of Commerce. General street repair and maintenance on any street used by vehicular traffic shall not be made a part of any assessments provided for hereunder.
J.
Okla. Stat. title 11 § 39-104 Number of Streets or Areas Included – Property Assessed for Improvement:
Any district may include one or more streets or areas which need not be contiguous and may include two (2) or more types of improvements. Such improvements may be included in one (1) proceeding and constructed and financed as one improvement. The district shall include, for the purpose of assessment, all the property which the governing body determines is benefited by the improvement or improvements, including property utilized for public, governmental, burial, or charitable purposes, except property of any religious organization used primarily for religious purposes, or of the United States, or any agency, instrumentality or corporation thereof, in the absence of consent of Congress. The board of county commissioners, the governing body of a city, town, school district or any agency or institution of state government is authorized to pay the amount assessed against property under its ownership or control.
K.
Okla. Stat. title 11 § 39-107 - Notice of Creation of Improvement District
Section 11-39-107. A. The notice as to creating an improvement district shall:
1. Contain the time and place when the governing body shall hold a hearing on the resolution to create the district;
2. Describe the improvement to be constructed and the general location thereof; and
3. State that any interested person may ascertain in the office of the municipal clerk:
a. a description of the property to be assessed, and
b. the maximum amount of benefit estimated to be conferred
on each tract or parcel of land.
B. Not more than thirty (30) days nor less than ten (10) days before the day of the hearing, the city clerk, his deputy or the engineer shall mail the notice of the hearing on the proposed district to the owner of the tract or parcel of land to be assessed the cost of the improvement at his last-known address. The name and address of the owner of each tract of land shall be obtained from the records of the county treasurer. The notice shall contain a preliminary basis for estimating the assessment. Proof of the mailing is to be made by affidavit of the city clerk, his deputy, or the engineer, which shall be filed in the office of the city clerk. Failure of the owner to receive any notice shall not invalidate any of the proceedings authorized in the Improvement District Act.
C. Notice of the hearing shall also be published. The last publication shall be at least seven (7) days prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher which is to be filed in the office of the city clerk.
L.
Okla. Stat. title 11 § 39-108 Hearings on Creation of District-Protests and Objections:
A. At the hearing of the governing body on the proposed resolution creating a district, any interested person or owner of property to be assessed for the improvement may file a written protest or objection questioning the:
1. Propriety and advisability of constructing the improvement;
2. Estimated cost of the improvement;
3. Manner of paying for the improvement; and
4. Amount to be assessed against the individual tract or parcel of land.
B. The governing body may recess the hearing from time to time so that all protestants may be heard.
C. At the hearing, the governing body may:
1. Correct any mistake or irregularity in any proceeding relating to the improvement;
2. Correct an assessment made against any tract or parcel of land;
3. In case of any invalidity, reassess the cost of the improvement against an abutting tract or parcel of land;
4. Delete any tract or parcel of land, protested by the owner, from the district; and
5. Recess the hearing from time to time.
D. Within thirty (30) days after the governing body has concluded the hearing; determined the advisability of constructing the improvement and the type and character of the improvement; and created the improvement district, any person who, during the hearing, filed a written protest with the governing body protesting the construction of the improvement may commence an action in district court to correct or set aside the determination of the governing body. After the lapse of thirty (30) days succeeding the determination of the governing body, any action attacking the validity of the proceedings and the amount of benefit to be derived from the improvement is perpetually barred. Provided, however, if the owners of fifty percent (50%) or more in area of the tracts or parcels within the district or a majority of the owners of record of property in the assessment area protest, in writing, the creation of the district, the district shall not be created.
M.
Okla. Stat. title 11 § 39-110 - Apportionment of Cost - Funding Sources - Limitation of Assessment - Assessment Roll - Hearings on Assessments
A. Following a hearing held pursuant to Section 39-108 of this title, the governing body shall determine the maximum portion of the total estimated cost of the improvement that shall be assessed against benefited tracts or parcels of land or, if a contract for construction or acquisition of improvements has already been awarded, the portion of the total actual cost of the improvement to be assessed against such tracts or parcels. The maximum annual assessment may include the estimated costs of the administration and collection of assessments and the administration of associated bonds or other related funds.
The governing body may use funds from any source, public or private, to pay for all or a portion of the assessment or the cost of the improvement. The assessment, including the cost of the improvement at an intersection, shall not exceed the estimated benefit to the tract or parcel of land assessed. Provided, however, the cost per front foot to be assessed against the benefiting property for paving a street, for paving alone, shall not exceed the cost per front foot assessed for paving a street that does not exceed thirty-six (36) feet in width.
B. With the assistance of the engineer, the governing body shall prepare and cause to be filed in the office of the city clerk an assessment roll containing, among other things:
1. The name and address of the last-known owner of each tract or parcel of land to be assessed, or if the name of the owner is unknown, state "unknown". The name and address of the owner of each tract of land shall be obtained from the records of the county treasurer;
2. A description of the tract or parcel of land to be assessed; and
3. The amount of the assessment against each tract or parcel of land.
C. After the filing of the assessment roll, the governing body shall, by resolution, set a time and place for the assessment hearing when an owner may object to the amount of the assessment.
D. Not more than thirty (30) days nor less than ten (10) days before the day of the hearing, the city clerk, the city clerk’s deputy or the engineer shall mail the notice of the hearing on the assessment roll to the owner of the tract or parcel of land being assessed the cost of the improvement. Proof of the mailing is to be made by affidavit of the city clerk, the city clerk’s deputy or the engineer, which shall be filed in the office of the city clerk. Failure of the owner to receive any notice shall not invalidate any of the proceedings authorized in the Improvement District Act. Notice of the hearing shall also be published. The last publication shall be at least seven (7) days prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher which is to be filed in the office of the city clerk.
E. Any property which shall be owned by the city, town or county, or any board of education or school district, shall be treated and considered the same as the property of other owners, and such city, town, county, school district or board of education within such district to be assessed may pay the total assessment against its property without interest within thirty (30) days from the date of the publication of the ordinance levying the assessment, or, in the event the same is not paid in full without interest within said thirty-day period, such city, town, county, school district or board of education shall annually provide by the levy of taxes a sufficient sum to pay the maturing installments of assessments and interest thereon.\
N.
Okla. Stat. title 62 § 654 (a) - Revenue Bonds - Election - Notice - Who May Vote
(a) Revenue bonds may be issued by a public trust as referred to in Section 2 above for the purposes set forth in Sections 2 and 3 hereof only with the approval of a majority of the qualified electors of the municipality or county voting at an election called for that purpose. An election on the question of issuing revenue bonds shall be held at the request of the trustees at such time as the governing body of the municipality or the board of county commissioners of a county shall designate by ordinance or resolution. Such ordinance or resolution shall specifically state the purpose for which the bonds are to be issued, the total amount of the issue and the date upon which the election is to held, which date shall not occur earlier than thirty (30) days after the passage of said ordinance or resolution.
CONCLUSION
For the reasons stated above, the proposed assessment by the City of Tulsa under the Tulsa Stadium Improvement District No. 1 is contrary to both state and federal law and must be barred. Plaintiffs are entitled to declaratory judgment to the effect that the Stadium Assessment District is ultra vires, and unconstitutional. Defendants should be permanently enjoined from taking any action in furtherance of the assessment in question. Plaintiffs should also be awarded relief under
42 U.S.C. § 1983 and attorney’s fees and costs under
42 U.S.C. § 1988.
Appendix of Statutes and Constitutional Provisions
A. U.S. Const. Amend. I:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
B. U.S. Const. Amend. V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
C. U.S. Const. Amend XIV, § 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
D. Okla. Const. Art. 2, § 23:
No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.
E. Okla. Const. Art. 2, § 24:
Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken. Such compensation shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law. Provided however, in no case shall the owner be required to make any payments should the benefits be judged to exceed damages. The commissioners shall not be appointed by any judge or court without reasonable notice having been served upon all parties in interest. The commissioners shall be selected from the regular jury list of names prepared and made as the Legislature shall provide. Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner divested. When possession is taken of property condemned for any public use, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of such compensation. The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question.
F. Okla. Const., Art. 10, § 7:
The Legislature may authorize county and municipal corporations to levy and collect assessments for local improvements upon property benefited thereby, homesteads included, without regard to a cash valuation.
G. Okla. Const., Art. 10, § 26 (a)
Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose, nor, in cases requiring such assent, shall any indebtedness be allowed to be incurred to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness: Provided, that if a school district has an absolute need therefor, such district may, with the assent of three-fifths of the voters thereof voting at an election to be held for that purpose, incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) but not exceeding ten percent (10%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness, for the purpose of acquiring or improving school sites, constructing, repairing, remodeling or equipping buildings, or acquiring school furniture, fixtures or equipment; and such assent to such indebtedness shall be deemed to be a sufficient showing of such absolute need, unless otherwise provided by law. Provided further, that if a city or town has an absolute need therefor, such city or town may, with the assent of three-fifths of the voters thereof voting at an election to be held for that purpose, incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) but not exceeding ten percent (10%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness, and such assent to such indebtedness shall be deemed to be a sufficient showing of such absolute need unless otherwise provided by law. Provided, further, that any county, city, town, school district, or other political corporation, or subdivision of the state, incurring any indebtedness requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty-five (25) years from the time of contracting the same, and provided further that nothing in this section shall prevent, under such conditions and limitations as shall be prescribed by law, any school district from contracting with:
(1) certificated personnel for periods extending one (1) year beyond the current fiscal year; or
(2) a school superintendent for periods extending more than one (1) year, but not to exceed three (3) years beyond the current fiscal year.…
H. Okla. Stat. title 11 § 39-103 : Creation of Improvement Districts - Purpose - Contents
The governing body of any city may create one or more districts for the purpose of making or causing to be made any improvement or combination of improvements that confer special benefit upon property within the district. Such improvement or combination of improvements may include the following, without limitation because of enumeration:
1. Acquisition of property or interest in property when necessary for any of the purposes authorized by the Improvement District Act;
2. Opening, creating, widening and extending or altering of streets to improve paving, and surfacing, constructing and reconstructing gutters, curbs, sidewalks, crosswalks, driveway entrances and structures, drainage facilities, and service connections from sewers, water, gas, electricity and other utility mains, conduits or pipes;
3. Constructing or improving main and lateral storm water drains and sanitary sewer systems and facilities;
4. Installation or improvement of street lights and street lighting systems;
5. Construction or improvement of water mains and waterworks systems;
6. Improvement of parks, playgrounds and recreational facilities;
7. Improvement of any street, parking or other facility by landscaping, or planting of trees, shrubs and other plants;
8. Constructing or improving dikes, levees and other flood control works, gates, lift stations, bridges and streets appurtenant thereto;
9. Constructing or improving vehicle and pedestrian bridges, overpasses and tunnels;
10. Constructing or improving retaining walls and area walls on public ways or land abutting thereon;
11. Constructing or improving property for off-street parking facilities, including construction and equipment of buildings thereon;
12. Constructing or improving pedestrian malls; or
13. Constructing or improving offsite facilities or infrastructure serving all or a portion of land within a district; notwithstanding that, such facilities or infrastructure may also serve areas outside a district, but subject to cost apportionment requirements of subsection A of Section 39-110 of this title.
I. Okla. Stat. title 11 §39-103.1 A Additional Improvement Districts - Assessments - Objections - Termination:
In addition to those purposes set out in Section 39-103 of this title, the governing body of any municipality having a population of more than one thousand five hundred (1,500) may create one or more districts and levy assessments for the purpose of providing or causing to be provided any maintenance, cleaning, security, shuttle service, upkeep, marketing, management or other services which confer special benefits upon property within the district by preserving, enhancing or extending the value or usefulness of any improvement described in Section 39-103 of this title, whether or not the improvement was financed or constructed pursuant to this act and such governing body may exclude or modify such assessments according to benefits received on properties which are exempt from ad valorem taxation, except those assessments provided for by Section 39-103 of this title. In addition, such districts may also be used to fund maintenance, management, marketing and other services being provided through an active Main Street Program recognized as such by the Oklahoma Department of Commerce. General street repair and maintenance on any street used by vehicular traffic shall not be made a part of any assessments provided for hereunder.
J. Okla. Stat. title 11 § 39-104 Number of Streets or Areas Included – Property Assessed for Improvement:
Any district may include one or more streets or areas which need not be contiguous and may include two (2) or more types of improvements. Such improvements may be included in one (1) proceeding and constructed and financed as one improvement. The district shall include, for the purpose of assessment, all the property which the governing body determines is benefited by the improvement or improvements, including property utilized for public, governmental, burial, or charitable purposes, except property of any religious organization used primarily for religious purposes, or of the United States, or any agency, instrumentality or corporation thereof, in the absence of consent of Congress. The board of county commissioners, the governing body of a city, town, school district or any agency or institution of state government is authorized to pay the amount assessed against property under its ownership or control.
K. Okla. Stat. title 11 § 39-107 - Notice of Creation of Improvement District
Section 11-39-107. A. The notice as to creating an improvement district shall:
1. Contain the time and place when the governing body shall hold a hearing on the resolution to create the district;
2. Describe the improvement to be constructed and the general location thereof; and
3. State that any interested person may ascertain in the office of the municipal clerk:
a. a description of the property to be assessed, and
b. the maximum amount of benefit estimated to be conferred
on each tract or parcel of land.
B. Not more than thirty (30) days nor less than ten (10) days before the day of the hearing, the city clerk, his deputy or the engineer shall mail the notice of the hearing on the proposed district to the owner of the tract or parcel of land to be assessed the cost of the improvement at his last-known address. The name and address of the owner of each tract of land shall be obtained from the records of the county treasurer. The notice shall contain a preliminary basis for estimating the assessment. Proof of the mailing is to be made by affidavit of the city clerk, his deputy, or the engineer, which shall be filed in the office of the city clerk. Failure of the owner to receive any notice shall not invalidate any of the proceedings authorized in the Improvement District Act.
C. Notice of the hearing shall also be published. The last publication shall be at least seven (7) days prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher which is to be filed in the office of the city clerk.
L. Okla. Stat. title 11 § 39-108 Hearings on Creation of District-Protests and Objections:
A. At the hearing of the governing body on the proposed resolution creating a district, any interested person or owner of property to be assessed for the improvement may file a written protest or objection questioning the:
1. Propriety and advisability of constructing the improvement;
2. Estimated cost of the improvement;
3. Manner of paying for the improvement; and
4. Amount to be assessed against the individual tract or parcel of land.
B. The governing body may recess the hearing from time to time so that all protestants may be heard.
C. At the hearing, the governing body may:
1. Correct any mistake or irregularity in any proceeding relating to the improvement;
2. Correct an assessment made against any tract or parcel of land;
3. In case of any invalidity, reassess the cost of the improvement against an abutting tract or parcel of land;
4. Delete any tract or parcel of land, protested by the owner, from the district; and
5. Recess the hearing from time to time.
D. Within thirty (30) days after the governing body has concluded the hearing; determined the advisability of constructing the improvement and the type and character of the improvement; and created the improvement district, any person who, during the hearing, filed a written protest with the governing body protesting the construction of the improvement may commence an action in district court to correct or set aside the determination of the governing body. After the lapse of thirty (30) days succeeding the determination of the governing body, any action attacking the validity of the proceedings and the amount of benefit to be derived from the improvement is perpetually barred. Provided, however, if the owners of fifty percent (50%) or more in area of the tracts or parcels within the district or a majority of the owners of record of property in the assessment area protest, in writing, the creation of the district, the district shall not be created.
M. Okla. Stat. title 11 § 39-110 - Apportionment of Cost - Funding Sources - Limitation of Assessment - Assessment Roll - Hearings on Assessments
A. Following a hearing held pursuant to Section 39-108 of this title, the governing body shall determine the maximum portion of the total estimated cost of the improvement that shall be assessed against benefited tracts or parcels of land or, if a contract for construction or acquisition of improvements has already been awarded, the portion of the total actual cost of the improvement to be assessed against such tracts or parcels. The maximum annual assessment may include the estimated costs of the administration and collection of assessments and the administration of associated bonds or other related funds.
The governing body may use funds from any source, public or private, to pay for all or a portion of the assessment or the cost of the improvement. The assessment, including the cost of the improvement at an intersection, shall not exceed the estimated benefit to the tract or parcel of land assessed. Provided, however, the cost per front foot to be assessed against the benefiting property for paving a street, for paving alone, shall not exceed the cost per front foot assessed for paving a street that does not exceed thirty-six (36) feet in width.
B. With the assistance of the engineer, the governing body shall prepare and cause to be filed in the office of the city clerk an assessment roll containing, among other things:
1. The name and address of the last-known owner of each tract or parcel of land to be assessed, or if the name of the owner is unknown, state "unknown". The name and address of the owner of each tract of land shall be obtained from the records of the county treasurer;
2. A description of the tract or parcel of land to be assessed; and
3. The amount of the assessment against each tract or parcel of land.
C. After the filing of the assessment roll, the governing body shall, by resolution, set a time and place for the assessment hearing when an owner may object to the amount of the assessment.
D. Not more than thirty (30) days nor less than ten (10) days before the day of the hearing, the city clerk, the city clerk’s deputy or the engineer shall mail the notice of the hearing on the assessment roll to the owner of the tract or parcel of land being assessed the cost of the improvement. Proof of the mailing is to be made by affidavit of the city clerk, the city clerk’s deputy or the engineer, which shall be filed in the office of the city clerk. Failure of the owner to receive any notice shall not invalidate any of the proceedings authorized in the Improvement District Act. Notice of the hearing shall also be published. The last publication shall be at least seven (7) days prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher which is to be filed in the office of the city clerk.
E. Any property which shall be owned by the city, town or county, or any board of education or school district, shall be treated and considered the same as the property of other owners, and such city, town, county, school district or board of education within such district to be assessed may pay the total assessment against its property without interest within thirty (30) days from the date of the publication of the ordinance levying the assessment, or, in the event the same is not paid in full without interest within said thirty-day period, such city, town, county, school district or board of education shall annually provide by the levy of taxes a sufficient sum to pay the maturing installments of assessments and interest thereon.\
N.
Okla. Stat. title 62 § 654 (a) - Revenue Bonds - Election - Notice - Who May Vote
(a) Revenue bonds may be issued by a public trust as referred to in Section 2 above for the purposes set forth in Sections 2 and 3 hereof only with the approval of a majority of the qualified electors of the municipality or county voting at an election called for that purpose. An election on the question of issuing revenue bonds shall be held at the request of the trustees at such time as the governing body of the municipality or the board of county commissioners of a county shall designate by ordinance or resolution. Such ordinance or resolution shall specifically state the purpose for which the bonds are to be issued, the total amount of the issue and the date upon which the election is to held, which date shall not occur earlier than thirty (30) days after the passage of said ordinance or resolution.
For the reasons stated above, the proposed assessment by the City of Tulsa under the Tulsa Stadium Improvement District No. 1 is contrary to both state and federal law and must be barred. Plaintiffs are entitled to declaratory judgment to the effect that the Stadium Assessment District is ultra vires, and unconstitutional. Defendants should be permanently enjoined from taking any action in furtherance of the assessment in question. Plaintiffs should also be awarded relief under 42 U.S.C. § 1983 and attorney’s fees and costs under 42 U.S.C. § 1988.
Appendix of Statutes and Constitutional Provisions
A. U.S. Const. Amend. I:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
B. U.S. Const. Amend. V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
C. U.S. Const. Amend XIV, § 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
D. Okla. Const. Art. 2, § 23:
No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.
E. Okla. Const. Art. 2, § 24:
Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken. Such compensation shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law. Provided however, in no case shall the owner be required to make any payments should the benefits be judged to exceed damages. The commissioners shall not be appointed by any judge or court without reasonable notice having been served upon all parties in interest. The commissioners shall be selected from the regular jury list of names prepared and made as the Legislature shall provide. Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner divested. When possession is taken of property condemned for any public use, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of such compensation. The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question.
F. Okla. Const., Art. 10, § 7:
The Legislature may authorize county and municipal corporations to levy and collect assessments for local improvements upon property benefited thereby, homesteads included, without regard to a cash valuation.
G. Okla. Const., Art. 10, § 26 (a)
Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose, nor, in cases requiring such assent, shall any indebtedness be allowed to be incurred to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness: Provided, that if a school district has an absolute need therefor, such district may, with the assent of three-fifths of the voters thereof voting at an election to be held for that purpose, incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) but not exceeding ten percent (10%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness, for the purpose of acquiring or improving school sites, constructing, repairing, remodeling or equipping buildings, or acquiring school furniture, fixtures or equipment; and such assent to such indebtedness shall be deemed to be a sufficient showing of such absolute need, unless otherwise provided by law. Provided further, that if a city or town has an absolute need therefor, such city or town may, with the assent of three-fifths of the voters thereof voting at an election to be held for that purpose, incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) but not exceeding ten percent (10%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness, and such assent to such indebtedness shall be deemed to be a sufficient showing of such absolute need unless otherwise provided by law. Provided, further, that any county, city, town, school district, or other political corporation, or subdivision of the state, incurring any indebtedness requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty-five (25) years from the time of contracting the same, and provided further that nothing in this section shall prevent, under such conditions and limitations as shall be prescribed by law, any school district from contracting with:
(1) certificated personnel for periods extending one (1) year beyond the current fiscal year; or
(2) a school superintendent for periods extending more than one (1) year, but not to exceed three (3) years beyond the current fiscal year.…
H. Okla. Stat. title 11 § 39-103 : Creation of Improvement Districts - Purpose - Contents
The governing body of any city may create one or more districts for the purpose of making or causing to be made any improvement or combination of improvements that confer special benefit upon property within the district. Such improvement or combination of improvements may include the following, without limitation because of enumeration:
1. Acquisition of property or interest in property when necessary for any of the purposes authorized by the Improvement District Act;
2. Opening, creating, widening and extending or altering of streets to improve paving, and surfacing, constructing and reconstructing gutters, curbs, sidewalks, crosswalks, driveway entrances and structures, drainage facilities, and service connections from sewers, water, gas, electricity and other utility mains, conduits or pipes;
3. Constructing or improving main and lateral storm water drains and sanitary sewer systems and facilities;
4. Installation or improvement of street lights and street lighting systems;
5. Construction or improvement of water mains and waterworks systems;
6. Improvement of parks, playgrounds and recreational facilities;
7. Improvement of any street, parking or other facility by landscaping, or planting of trees, shrubs and other plants;
8. Constructing or improving dikes, levees and other flood control works, gates, lift stations, bridges and streets appurtenant thereto;
9. Constructing or improving vehicle and pedestrian bridges, overpasses and tunnels;
10. Constructing or improving retaining walls and area walls on public ways or land abutting thereon;
11. Constructing or improving property for off-street parking facilities, including construction and equipment of buildings thereon;
12. Constructing or improving pedestrian malls; or
13. Constructing or improving offsite facilities or infrastructure serving all or a portion of land within a district; notwithstanding that, such facilities or infrastructure may also serve areas outside a district, but subject to cost apportionment requirements of subsection A of Section 39-110 of this title.
I. Okla. Stat. title 11 §39-103.1 A Additional Improvement Districts - Assessments - Objections - Termination:
In addition to those purposes set out in Section 39-103 of this title, the governing body of any municipality having a population of more than one thousand five hundred (1,500) may create one or more districts and levy assessments for the purpose of providing or causing to be provided any maintenance, cleaning, security, shuttle service, upkeep, marketing, management or other services which confer special benefits upon property within the district by preserving, enhancing or extending the value or usefulness of any improvement described in Section 39-103 of this title, whether or not the improvement was financed or constructed pursuant to this act and such governing body may exclude or modify such assessments according to benefits received on properties which are exempt from ad valorem taxation, except those assessments provided for by Section 39-103 of this title. In addition, such districts may also be used to fund maintenance, management, marketing and other services being provided through an active Main Street Program recognized as such by the Oklahoma Department of Commerce. General street repair and maintenance on any street used by vehicular traffic shall not be made a part of any assessments provided for hereunder.
J. Okla. Stat. title 11 § 39-104 Number of Streets or Areas Included – Property Assessed for Improvement:
Any district may include one or more streets or areas which need not be contiguous and may include two (2) or more types of improvements. Such improvements may be included in one (1) proceeding and constructed and financed as one improvement. The district shall include, for the purpose of assessment, all the property which the governing body determines is benefited by the improvement or improvements, including property utilized for public, governmental, burial, or charitable purposes, except property of any religious organization used primarily for religious purposes, or of the United States, or any agency, instrumentality or corporation thereof, in the absence of consent of Congress. The board of county commissioners, the governing body of a city, town, school district or any agency or institution of state government is authorized to pay the amount assessed against property under its ownership or control.
K. Okla. Stat. title 11 § 39-107 - Notice of Creation of Improvement District
Section 11-39-107. A. The notice as to creating an improvement district shall:
1. Contain the time and place when the governing body shall hold a hearing on the resolution to create the district;
2. Describe the improvement to be constructed and the general location thereof; and
3. State that any interested person may ascertain in the office of the municipal clerk:
a. a description of the property to be assessed, and
b. the maximum amount of benefit estimated to be conferred
on each tract or parcel of land.
B. Not more than thirty (30) days nor less than ten (10) days before the day of the hearing, the city clerk, his deputy or the engineer shall mail the notice of the hearing on the proposed district to the owner of the tract or parcel of land to be assessed the cost of the improvement at his last-known address. The name and address of the owner of each tract of land shall be obtained from the records of the county treasurer. The notice shall contain a preliminary basis for estimating the assessment. Proof of the mailing is to be made by affidavit of the city clerk, his deputy, or the engineer, which shall be filed in the office of the city clerk. Failure of the owner to receive any notice shall not invalidate any of the proceedings authorized in the Improvement District Act.
C. Notice of the hearing shall also be published. The last publication shall be at least seven (7) days prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher which is to be filed in the office of the city clerk.
L. Okla. Stat. title 11 § 39-108 Hearings on Creation of District-Protests and Objections:
A. At the hearing of the governing body on the proposed resolution creating a district, any interested person or owner of property to be assessed for the improvement may file a written protest or objection questioning the:
1. Propriety and advisability of constructing the improvement;
2. Estimated cost of the improvement;
3. Manner of paying for the improvement; and
4. Amount to be assessed against the individual tract or parcel of land.
B. The governing body may recess the hearing from time to time so that all protestants may be heard.
C. At the hearing, the governing body may:
1. Correct any mistake or irregularity in any proceeding relating to the improvement;
2. Correct an assessment made against any tract or parcel of land;
3. In case of any invalidity, reassess the cost of the improvement against an abutting tract or parcel of land;
4. Delete any tract or parcel of land, protested by the owner, from the district; and
5. Recess the hearing from time to time.
D. Within thirty (30) days after the governing body has concluded the hearing; determined the advisability of constructing the improvement and the type and character of the improvement; and created the improvement district, any person who, during the hearing, filed a written protest with the governing body protesting the construction of the improvement may commence an action in district court to correct or set aside the determination of the governing body. After the lapse of thirty (30) days succeeding the determination of the governing body, any action attacking the validity of the proceedings and the amount of benefit to be derived from the improvement is perpetually barred. Provided, however, if the owners of fifty percent (50%) or more in area of the tracts or parcels within the district or a majority of the owners of record of property in the assessment area protest, in writing, the creation of the district, the district shall not be created.
M. Okla. Stat. title 11 § 39-110 - Apportionment of Cost - Funding Sources - Limitation of Assessment - Assessment Roll - Hearings on Assessments
A. Following a hearing held pursuant to Section 39-108 of this title, the governing body shall determine the maximum portion of the total estimated cost of the improvement that shall be assessed against benefited tracts or parcels of land or, if a contract for construction or acquisition of improvements has already been awarded, the portion of the total actual cost of the improvement to be assessed against such tracts or parcels. The maximum annual assessment may include the estimated costs of the administration and collection of assessments and the administration of associated bonds or other related funds.
The governing body may use funds from any source, public or private, to pay for all or a portion of the assessment or the cost of the improvement. The assessment, including the cost of the improvement at an intersection, shall not exceed the estimated benefit to the tract or parcel of land assessed. Provided, however, the cost per front foot to be assessed against the benefiting property for paving a street, for paving alone, shall not exceed the cost per front foot assessed for paving a street that does not exceed thirty-six (36) feet in width.
B. With the assistance of the engineer, the governing body shall prepare and cause to be filed in the office of the city clerk an assessment roll containing, among other things:
1. The name and address of the last-known owner of each tract or parcel of land to be assessed, or if the name of the owner is unknown, state "unknown". The name and address of the owner of each tract of land shall be obtained from the records of the county treasurer;
2. A description of the tract or parcel of land to be assessed; and
3. The amount of the assessment against each tract or parcel of land.
C. After the filing of the assessment roll, the governing body shall, by resolution, set a time and place for the assessment hearing when an owner may object to the amount of the assessment.
D. Not more than thirty (30) days nor less than ten (10) days before the day of the hearing, the city clerk, the city clerk’s deputy or the engineer shall mail the notice of the hearing on the assessment roll to the owner of the tract or parcel of land being assessed the cost of the improvement. Proof of the mailing is to be made by affidavit of the city clerk, the city clerk’s deputy or the engineer, which shall be filed in the office of the city clerk. Failure of the owner to receive any notice shall not invalidate any of the proceedings authorized in the Improvement District Act. Notice of the hearing shall also be published. The last publication shall be at least seven (7) days prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher which is to be filed in the office of the city clerk.
E. Any property which shall be owned by the city, town or county, or any board of education or school district, shall be treated and considered the same as the property of other owners, and such city, town, county, school district or board of education within such district to be assessed may pay the total assessment against its property without interest within thirty (30) days from the date of the publication of the ordinance levying the assessment, or, in the event the same is not paid in full without interest within said thirty-day period, such city, town, county, school district or board of education shall annually provide by the levy of taxes a sufficient sum to pay the maturing installments of assessments and interest thereon.\
N.
Okla. Stat. title 62 § 654 (a) - Revenue Bonds - Election - Notice - Who May Vote
(a) Revenue bonds may be issued by a public trust as referred to in Section 2 above for the purposes set forth in Sections 2 and 3 hereof only with the approval of a majority of the qualified electors of the municipality or county voting at an election called for that purpose. An election on the question of issuing revenue bonds shall be held at the request of the trustees at such time as the governing body of the municipality or the board of county commissioners of a county shall designate by ordinance or resolution. Such ordinance or resolution shall specifically state the purpose for which the bonds are to be issued, the total amount of the issue and the date upon which the election is to held, which date shall not occur earlier than thirty (30) days after the passage of said ordinance or resolution.
the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness: Provided, that if a school district has an absolute need therefor, such district may, with the assent of three-fifths of the voters thereof voting at an election to be held for that purpose, incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) but not exceeding ten percent (10%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness, for the purpose of acquiring or improving school sites, constructing, repairing, remodeling or equipping buildings, or acquiring school furniture, fixtures or equipment; and such assent to such indebtedness shall be deemed to be a sufficient showing of such absolute need, unless otherwise provided by law. Provided further, that if a city or town has an absolute need therefor, such city or town may, with the assent of three-fifths of the voters thereof voting at an election to be held for that purpose, incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) but not exceeding ten percent (10%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness, and such assent to such indebtedness shall be deemed to be a sufficient showing of such absolute need unless otherwise provided by law. Provided, further, that any county, city, town, school district, or other political corporation, or subdivision of the state, incurring any indebtedness requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty-five (25) years from the time of contracting the same, and provided further that nothing in this section shall prevent, under such conditions and limitations as shall be prescribed by law, any school district from contracting with:
(1) certificated personnel for periods extending one (1) year beyond the current fiscal year; or
(2) a school superintendent for periods extending more than one (1) year, but not to exceed three (3) years beyond the current fiscal year.…
H. Okla. Stat. title 11 § 39-103 : Creation of Improvement Districts - Purpose - Contents
The governing body of any city may create one or more districts for the purpose of making or causing to be made any improvement or combination of improvements that confer special benefit upon property within the district. Such improvement or combination of improvements may include the following, without limitation because of enumeration:
1. Acquisition of property or interest in property when necessary for any of the purposes authorized by the Improvement District Act;
2. Opening, creating, widening and extending or altering of streets to improve paving, and surfacing, constructing and reconstructing gutters, curbs, sidewalks, crosswalks, driveway entrances and structures, drainage facilities, and service connections from sewers, water, gas, electricity and other utility mains, conduits or pipes;
3. Constructing or improving main and lateral storm water drains and sanitary sewer systems and facilities;
4. Installation or improvement of street lights and street lighting systems;
5. Construction or improvement of water mains and waterworks systems;
6. Improvement of parks, playgrounds and recreational facilities;
7. Improvement of any street, parking or other facility by landscaping, or planting of trees, shrubs and other plants;
8. Constructing or improving dikes, levees and other flood control works, gates, lift stations, bridges and streets appurtenant thereto;
9. Constructing or improving vehicle and pedestrian bridges, overpasses and tunnels;
10. Constructing or improving retaining walls and area walls on public ways or land abutting thereon;
11. Constructing or improving property for off-street parking facilities, including construction and equipment of buildings thereon;
12. Constructing or improving pedestrian malls; or
13. Constructing or improving offsite facilities or infrastructure serving all or a portion of land within a district; notwithstanding that, such facilities or infrastructure may also serve areas outside a district, but subject to cost apportionment requirements of subsection A of Section 39-110 of this title.
I. Okla. Stat. title 11 §39-103.1 A Additional Improvement Districts - Assessments - Objections - Termination:
In addition to those purposes set out in Section 39-103 of this title, the governing body of any municipality having a population of more than one thousand five hundred (1,500) may create one or more districts and levy assessments for the purpose of providing or causing to be provided any maintenance, cleaning, security, shuttle service, upkeep, marketing, management or other services which confer special benefits upon property within the district by preserving, enhancing or extending the value or usefulness of any improvement described in Section 39-103 of this title, whether or not the improvement was financed or constructed pursuant to this act and such governing body may exclude or modify such assessments according to benefits received on properties which are exempt from ad valorem taxation, except those assessments provided for by Section 39-103 of this title. In addition, such districts may also be used to fund maintenance, management, marketing and other services being provided through an active Main Street Program recognized as such by the Oklahoma Department of Commerce. General street repair and maintenance on any street used by vehicular traffic shall not be made a part of any assessments provided for hereunder.
J. Okla. Stat. title 11 § 39-104 Number of Streets or Areas Included – Property Assessed for Improvement:
Any district may include one or more streets or areas which need not be contiguous and may include two (2) or more types of improvements. Such improvements may be included in one (1) proceeding and constructed and financed as one improvement. The district shall include, for the purpose of assessment, all the property which the governing body determines is benefited by the improvement or improvements, including property utilized for public, governmental, burial, or charitable purposes, except property of any religious organization used primarily for religious purposes, or of the United States, or any agency, instrumentality or corporation thereof, in the absence of consent of Congress. The board of county commissioners, the governing body of a city, town, school district or any agency or institution of state government is authorized to pay the amount assessed against property under its ownership or control.
K. Okla. Stat. title 11 § 39-107 - Notice of Creation of Improvement District Section 11-39-107. A. The notice as to creating an improvement district shall:
1. Contain the time and place when the governing body shall hold a hearing on the resolution to create the district;
2. Describe the improvement to be constructed and the general location thereof; and
3. State that any interested person may ascertain in the office of the municipal clerk:
a. a description of the property to be assessed, and
b. the maximum amount of benefit estimated to be conferred on each tract or parcel of land.
B. Not more than thirty (30) days nor less than ten (10) days before the day of the hearing, the city clerk, his deputy or the engineer shall mail the notice of the hearing on the proposed district to the owner of the tract or parcel of land to be assessed the cost of the improvement at his last-known address. The name and address of the owner of each tract of land shall be obtained from the records of the county treasurer. The notice shall contain a preliminary basis for estimating the assessment. Proof of the mailing is to be made by affidavit of the city clerk, his deputy, or the engineer, which shall be filed in the office of the city clerk. Failure of the owner to receive any notice shall not invalidate any of the proceedings authorized in the Improvement District Act.
C. Notice of the hearing shall also be published. The last publication shall be at least seven (7) days prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher which is to be filed in the office of the city clerk.
L. Okla. Stat. title 11 § 39-108 Hearings on Creation of District-Protests and Objections:
A. At the hearing of the governing body on the proposed resolution creating a district, any interested person or owner of property to be assessed for the improvement may file a written protest or objection questioning the:
1. Propriety and advisability of constructing the improvement;
2. Estimated cost of the improvement;
3. Manner of paying for the improvement; and
4. Amount to be assessed against the individual tract or parcel of land.
B. The governing body may recess the hearing from time to time so that all protestants may be heard.
C. At the hearing, the governing body may:
1. Correct any mistake or irregularity in any proceeding relating to the improvement;
2. Correct an assessment made against any tract or parcel of land;
3. In case of any invalidity, reassess the cost of the improvement against an abutting tract or parcel of land;
4. Delete any tract or parcel of land, protested by the owner, from the district; and
5. Recess the hearing from time to time.
D. Within thirty (30) days after the governing body has concluded the hearing; determined the advisability of constructing the improvement and the type and character of the improvement; and created the improvement district, any person who, during the hearing, filed a written protest with the governing body protesting the construction of the improvement may commence an action in district court to correct or set aside the determination of the governing body. After the lapse of thirty (30) days succeeding the determination of the governing body, any action attacking the validity of the proceedings and the amount of benefit to be derived from the improvement is perpetually barred. Provided, however, if the owners of fifty percent (50%) or more in area of the tracts or parcels within the district or a majority of the owners of record of property in the assessment area protest, in writing, the creation of the district, the district shall not be created.
M. Okla. Stat. title 11 § 39-110 - Apportionment of Cost - Funding Sources - Limitation of Assessment - Assessment Roll - Hearings on Assessments
A. Following a hearing held pursuant to Section 39-108 of this title, the governing body shall determine the maximum portion of the total estimated cost of the improvement that shall be assessed against benefited tracts or parcels of land or, if a contract for construction or acquisition of improvements has already been awarded, the portion of the total actual cost of the improvement to be assessed against such tracts or parcels. The maximum annual assessment may include the estimated costs of the administration and collection of assessments and the administration of associated bonds or other related funds. The governing body may use funds from any source, public or private, to pay for all or a portion of the assessment or the cost of the improvement. The assessment, including the cost of the improvement at an intersection, shall not exceed the estimated benefit to the tract or parcel of land assessed. Provided, however, the cost per front foot to be assessed against the benefiting property for paving a street, for paving alone, shall not exceed the cost per front foot assessed for paving a street that does not exceed thirty-six (36) feet in width. B. With the assistance of the engineer, the governing body shall prepare and cause to be filed in the office of the city clerk an assessment roll containing, among other things:
1. The name and address of the last-known owner of each tract or parcel of land to be assessed, or if the name of the owner is unknown, state "unknown". The name and address of the owner of each tract of land shall be obtained from the records of the county treasurer;
2. A description of the tract or parcel of land to be assessed; and
3. The amount of the assessment against each tract or parcel of land.
C. After the filing of the assessment roll, the governing body shall, by resolution, set a time and place for the assessment hearing when an owner may object to the amount of the assessment.
D. Not more than thirty (30) days nor less than ten (10) days before the day of the hearing, the city clerk, the city clerk’s deputy or the engineer shall mail the notice of the hearing on the assessment roll to the owner of the tract or parcel of land being assessed the cost of the improvement. Proof of the mailing is to be made by affidavit of the city clerk, the city clerk’s deputy or the engineer, which shall be filed in the office of the city clerk. Failure of the owner to receive any notice shall not invalidate any of the proceedings authorized in the Improvement District Act. Notice of the hearing shall also be published. The last publication shall be at least seven (7) days prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher which is to be filed in the office of the city clerk.
E. Any property which shall be owned by the city, town or county, or any board of education or school district, shall be treated and considered the same as the property of other owners, and such city, town, county, school district or board of education within such district to be assessed may pay the total assessment against its property without interest within thirty (30) days from the date of the publication of the ordinance levying the assessment, or, in the event the same is not paid in full without interest within said thirty-day period, such city, town, county, school district or board of education shall annually provide by the levy of taxes a sufficient sum to pay the maturing installments of assessments and interest thereon.\
N.
Okla. Stat. title 62 § 654 (a) - Revenue Bonds - Election - Notice - Who May Vote
(a) Revenue bonds may be issued by a public trust as referred to in Section 2 above for the purposes set forth in Sections 2 and 3 hereof only with the approval of a majority of the qualified electors of the municipality or county voting at an election called for that purpose. An election on the question of issuing revenue bonds shall be held at the request of the trustees at such time as the governing body of the municipality or the board of county commissioners of a county shall designate by ordinance or resolution. Such ordinance or resolution shall specifically state the purpose for which the bonds are to be issued, the total amount of the issue and the date upon which the election is to held, which date shall not occur earlier than thirty (30) days after the passage of said ordinance or resolution.
Outcome: The motion is pending.
Plaintiff's Experts:
Defendant's Experts:
Comments: