City of Muskogee, Okla., Corp. v. Phillips, Case Number: 111501

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Writing for the Court: Bay Mitchell
• Citation: 2015 OK CIV APP 57
• Parties: CITY OF MUSKOGEE, OKLAHOMA, A Municipal Corporation, Plaintiff/Appellee, v. CATHERINE M. PHILLIPS, a/k/a CATHERINE MASTERSON and ORLIN PHILLIPS, Defendants/Appellants, and MUSKOGEE COUNTY TREASURER; BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, OKLAHOMA; EASTSIDE BOULEVARD, L.L.C.; FLOYD HARJO; HILLY HARJO, Defendants.
• Decision Date: 10 June 2015
• Docket Number: Case Number: 111501

2015 OK CIV APP 57

CITY OF MUSKOGEE, OKLAHOMA, A Municipal
Corporation, Plaintiff/Appellee,
v.
CATHERINE M. PHILLIPS, a/k/a CATHERINE
MASTERSON and ORLIN PHILLIPS, Defendants/Appellants,
and MUSKOGEE COUNTY TREASURER; BOARD OF
COUNTY COMMISSIONERS OF MUSKOGEE COUNTY,
OKLAHOMA; EASTSIDE BOULEVARD, L.L.C.;
FLOYD HARJO; HILLY HARJO, Defendants.

Case Number: 111501

COURT OF CIVIL APPEALS .OF THE STATE OF OKLAHOMA, DIVISION III

Decided: November 21, 2014
Mandate Issued: June 10, 2015

APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY, OKLAHOMA
HONORABLE NORMAN THYGESEN, JUDGE REVERSED

Matthew C. Beese, Muskogee, Oklahoma, for Plaintiff/Appellee,

David E. Anderson, Miami, Oklahoma, for Defendants/Appellants.

Bay Mitchell, Judge:

¶1 This is a condemnation action initiated by the City of Muskogee ("Muskogee") against property owners, Defendants/Appellants Catherine Phillips and Orlin Phillips ("Property Owners"). Property Owners appeal from the trial court's Order overruling Defendants' exceptions to the Muskogee County Commissioners' Report in favor of Muskogee.¹

¶2 In January 2012, Muskogee passed and adopted Resolution No. 2385 ("the Resolution") declaring the necessity for acquiring five parcels including private residential property for the construction of a parking facility described therein as a public utility pursuant to In re Application of Southern Oklahoma Development Trust, 470 P.2d 572. The Resolution provided "said parking facility is needed for the health and safety of the Citizen's [sic] of Muskogee by reducing the volume of on-street parking in the areas near and surrounding [public ways: North "G" Street; North "F" Street; East Broadway; and, Callahan Street]." The Resolution authorized acquisition of the subject properties by purchase or if they cannot be purchased, by condemnation proceedings. The Resolution further called for the parking facility to be constructed, maintained and operated through a leasehold estate with the Muskogee Parking Authority, a public trust.

¶3 The married Property Owners are the record owners of two parcels subject to the Resolution: a vacant lot and the residential property located at 211 North G Street.² They have lived there together over 20 years and Mrs. Phillips had lived in that house (before they were married) for over 40 years. In accordance with the authorization provided in the Resolution, the properties were appraised and The City Manager attempted to negotiate for the purchase of the subject properties.³

¶4 After the attempts to purchase the properties failed, Muskogee filed the instant action in June 2012, seeking to acquire the properties by condemnation. The Resolution and an affidavit declaring the necessity of the acquisition were attached as exhibits to the condemnation Petition. The Affidavit of Necessity, executed by Muskogee's Director of Public Works, provides in pertinent part as follows:

In order to economically implement the City project known as the "VA Parking Project 2012" pursuant to City Council Resolution NO. 2385, it is necessary to acquire all the property needed to build a parking lot from and including the areas between North "F" and "G" Streets and Callahan and East Broadway. The real property subject to this suit is within this described area. . . . As such, the City has determined that a public necessity exists for the acquisition of the real property subject to this suit.

¶5 After proper appointment of Commissioners and the August 2012 filing of the Report of Commissioners, Property Owners timely filed their Exceptions to same.⁴ Their primary objection was on the basis that the purported exercise of eminent domain was for an improper private purpose and not necessary for a lawful public purpose. Additionally, they asserted the Commissioners' Report suggests the taking was for the purpose of economic development, which is not a public purpose to justify the exercise of eminent domain.

¶6 Muskogee responded with the filing of a brief in opposition to Property Owners' Exceptions and an Application for a Writ of Assistance. It sought to condemn the properties pursuant to 11 O.S. §22-104(2) and (3), which provides "Every municipality shall have the right to . . . acquire, own, and maintain . . . real estate for sites and rights-of-way for any municipal purpose including but not limited to public utility and public park purposes" and "exercise the right of eminent domain for any municipal purpose." Id.Muskogee essentially asserted the proposed parking facility is a public utility for which it may lawfully exercise its eminent domain power.

¶7 Subsequent to an evidentiary hearing, the trial court ultimately determined the principal purpose of the taking was a public purpose (while noting "there may be some tangential private benefits gained by individuals or private entities") and therefore overruled Property Owners' Exceptions to the Commissioners' Report.⁵ Property Owners appeal.

¶8 We are guided by the Oklahoma Constitution concerning the taking of private property. Article 2, §23 provides as follows:

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.

OKLA. CONST. Art. 2, §23 (emphasis added). Our Constitution further generally provides "private property shall not be taken or damaged for public use without just compensation." OKLA. CONST. Art. 2, §24. That constitutional provision additionally states "[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." Id.⁶ The law is clear that "[p]rivate property may not be taken or damaged by the condemning agency unless the taking or damage is necessary for the accomplishment of a lawful public purpose." Luccock v. City of Norman, ...