Oklahoma City v. URBAN RENEWAL AUTHORITY

• Decision Date: 30 August 1999
• Docket Number: No. 92,874.,92,874.
• Citation: 988 P.2d 901,1999 OK 71
• Parties: The CITY OF OKLAHOMA CITY, a municipal corporation, Plaintiff-Appellee, v. The OKLAHOMA CITY URBAN RENEWAL AUTHORITY, a public body corporate; Bricktown Parking Investors, L.L.C., an Oklahoma limited liability company; and Bricktown TMK/Hogan Entertainment, L.L.C., an Oklahoma limited liability company, Defendants-Appellees, v. Moshe Tal, Lisa (Michelle) Bowers, Dr. John Miglaccio, Steve Miglaccio, Joy Parker, Physilla (Jo) Polley, Edna (Ennise) Richardson, Morning-Star Takapu, Robby (James) Lovett, W.D. Mcgown, and Michael (Lawrence) Toms, individually and as an association known as Taxpayers Against Ripoffs ("T.A.R."), Appellants.
• Court: Oklahoma Supreme Court

988 P.2d 901

1999 OK 71

The CITY OF OKLAHOMA CITY, a municipal corporation, Plaintiff-Appellee, v. The OKLAHOMA CITY URBAN RENEWAL AUTHORITY, a public body corporate; Bricktown Parking Investors, L.L.C., an Oklahoma limited liability company; and Bricktown TMK/Hogan Entertainment, L.L.C., an Oklahoma limited liability company, Defendants-Appellees, v. Moshe Tal, Lisa (Michelle) Bowers, Dr. John Miglaccio, Steve Miglaccio, Joy Parker, Physilla (Jo) Polley, Edna (Ennise) Richardson, Morning-Star Takapu, Robby (James) Lovett, W.D. Mcgown, and Michael (Lawrence) Toms, individually and as an association known as Taxpayers Against Ripoffs ("T.A.R."), Appellants.

No. 92,874.

Supreme Court of Oklahoma.

August 30, 1999.

As Corrected September 1, 1999.

Rehearing Denied September 30, 1999.

William O. West, Municipal Counselor, and David Brummitt, Assistant Municipal Counselor, for Appellee, City of Oklahoma City.

Dan Batchelor and Janis Powers, Batchelor and Powers, Oklahoma City, Oklahoma, for Appellee, Oklahoma City Urban Renewal Authority.

Melvin R. McVay, Jr., Robert N. Sheets, Heather L. Hintz, and Ellen K. Spiropoulos, Phillips, McFall McCaffrey, McVay & Murrah, Oklahoma City, Oklahoma, for Appellees, Bricktown Parking Investors, L.L.C. and Bricktown TMK/Hogan Entertainment, L.L.C.

Bryce S. Kennedy, Jr., Kennedy & Associates, Enid, Oklahoma, for Appellants.

OPINION

WATT, Justice.

¶ 1 This is an appeal from the order of the District Court of Oklahoma County, Honorable Karl Gray, District Judge, denying the motion to intervene and motion for continuance of Moshe Tal and others, who call themselves "an association known as Taxpayers Against Ripoffs (`T.A.R.')." Appellants appeal from the trial court's order. Tal is an unsuccessful bidder for the Redevelopment Agreements on the MAPS Bricktown Redevelopment Project, which Agreements were ultimately awarded to appellees, Bricktown Parking Investors and TMK/Hogan.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On January 12, 1999 Tal, and the other members of T.A.R., signed a Written Demand, which was delivered to the City Clerk of appellee, City of Oklahoma City pursuant to 62 O.S.1991 §§ 372 and 373.¹ Sections 372 and 373 provide that if, after written demand is made by ten resident taxpayers, a public body fails to prosecute proceedings to recover money or property belonging to the public body, which the taxpayers claim was unlawfully or fraudulently obtained, any resident taxpayer may sue in the name of the state to recover the money or property plus treble damages from the officials responsible for the wrongful acts; the taxpayer will be entitled to one-half the money or one-half the value of the property recovered. Such an action is known as a "Qui tam" action, that is "An action brought on a penal statute by an informer, who sues for the penalty . . ." The Oxford English Dictionary on CD-ROM (2d Ed.1994).

¶ 3 Appellants' Demand alleged that certain Development Agreements, to which Oklahoma City was not a party, and which had been entered into between the Oklahoma City Urban Renewal Authority, Bricktown Parking Investors, and TMK/Hogan Entertainment, were unlawful. Appellants demanded that Oklahoma City file a lawsuit to declare the Development Agreements void and to recover certain property that Oklahoma City had conveyed to the Urban Renewal Authority. The record reflects that Moshe Tal had enlisted the support of the other signatories of the Demand, the members of the T.A.R. association.

¶ 4 In response to appellants' Demand, Oklahoma City filed a declaratory judgment action against the Urban Renewal Authority, Bricktown Parking Investors, and TMK/Hogan on January 16, 1999. Oklahoma City asked for a declaration that the Development Agreements were lawful and, alternatively if the court should decide that Development Agreements were unlawful, that the court order the Urban Renewal Authority to return the property that Oklahoma City had conveyed to it. Notice of the suit was given to T.A.R.'s attorney. On January 17, 1999, Bricktown Parking Investors filed its Answer, Counterclaim and Cross Claim, and TMK/Hogan filed its answer. On February 3, 1999, upon stipulation of the parties, the trial court entered an order setting the matter for non-jury trial on March 1, 1999.

¶ 5 On February 22 and 23, 1999, defendants took the depositions of appellants, T.A.R. members, Moshe Tal, Lisa Bowers, W.D. McGown, Joy Parker, Pyhsilla Jo Polley, Edna Ennise Richardson, Morning-Star Takapu, Michael Toms, and Steve Migliaccio. Appellants' attorneys appeared at each of the depositions. Tal's deposition was 129 pages long. After the trial had commenced, appellants' attorney filed a motion to intervene and for continuance. The trial court, after argument of counsel, considering the depositions of Tal and the other T.A.R. members who had been deposed, and also considering T.A.R.'s Written Demand, denied T.A.R.'s motion to intervene.

¶ 6 Tal and the other T.A.R. members appealed from the trial court's ruling. The appellees then filed motions that this Court retain jurisdiction and treat the appeal on an expedited basis. We granted the appellees' motions. Appellees also moved to dismiss appellants' appeal, which motion we reserved for disposition to the decisional stage of the appeal. As a consequence of the result of this appeal appellees' motions are moot.

¶ 7 After the disposition of T.A.R.'s motion to intervene, the case was tried on the merits and the trial court found that the Agreements were lawful and entered a mandatory injunction, which requires that the Urban Renewal Authority carry out the terms of the Agreements between itself and the developers, Bricktown Parking Investors and TMK/Hogan. The record of the trial was made a part of the record on appeal here.

¶ 8 The Urban Renewal Authority represents that the developers are relying on their ability to raise money from third party investors and lenders, and upon the participation of a company to commit to build a theater complex in the area. According to the Urban Renewal Authority, the pendency of this appeal has meant that the parties to this litigation have been unable to satisfy the requirements of these third parties, which inability has prevented the them from funding the design and letting a construction contract to carry out improvements to the Bricktown Canal, which failure prevents the Urban Renewal Authority from complying with the requirements of the mandatory injunction. The completion of these improvements are conditions precedent to the development of the Bricktown entertainment complex.

The MAPS Project and the Bricktown Development Plan

¶ 9 Some background concerning the MAPS project and the development of the Bricktown area are necessary for a thorough understanding of the issues in this case. The conveyance from Oklahoma City to the Urban Renewal Authority and the Development Agreements between the Urban Renewal Authority, Bricktown Parking Investors, and TMK/Hogan were carried out as part of the Oklahoma City Metropolitan Area Projects program, known as "MAPS." The MAPS project began with a one-cent sales tax increase, which the voters of Oklahoma City approved in 1993. The MAPS sales tax produced $300,000,000.00 to be used in the construction of new projects, including the Bricktown Ball Park, the Bricktown Canal, and the renovation of existing structures, such as the Myriad Convention Center.

¶ 10 One of the MAPS program's primary purposes is to attract private investors to invest in the areas being developed as part of the program. To this end, Oklahoma City's City Council passed a Redevelopment Plan for the Bricktown area in 1997. The Redevelopment Plan was designed to attract private investors to build sports related parking and entertainment related improvements. Appellant Moshe Tal was the leader of one group of investors who sought the contracts to carry out the Redevelopment Plan but the City Council, after widely publicized hearings and based on an extremely close vote, ultimately awarded the Development Agreements to Bricktown Parking Investors and TMK/Hogan rather than to Tal's group. The final decision was made by the City Council only after two years of public meetings, public notices, public hearings, and citizen review.

¶ 11 Oklahoma City had conveyed property it had acquired in the area to the Urban Renewal Authority with the proviso that Oklahoma City would receive the net proceeds from the sale of the property by the Urban Renewal Authority and that the price paid to the Urban Renewal Authority for the property would "be not less than the actual `fair market value' of said property." The property was appraised on three separate occasions by professional appraisers before it was sold. The trial court found and the record supports that the Urban Renewal Authority received fair market value for the property.

¶ 12 T.A.R. also complained that the Agreements failed to serve a public purpose and provided insufficient safeguards and accountability to the Urban Renewal Authority and Oklahoma City. The trial court held that the Agreements did provide for adequate accountability and safeguards.

¶ 13 After receiving the property and in furtherance of the redevelopment plan, the Urban Renewal Authority made Development Agreements with Bricktown Parking Investors and TMK/Hogan. Under its Agreement with the Urban Renewal Authority, TMK/Hogan will purchase a development site at its fair market value of about $3.3 million and develop the Bricktown entertainment Center at an estimated cost of over $30 million. Bricktown Parking Investors agreed to develop 1,200 parking spaces, subject to the later relocation of the parking to another site in order to make room for the development of the Entertainment Center.

ISSUE

¶ 14 There is but a single, narrow issue in this case: Did the trial court err in denying T.A.R.'s motions to intervene and for continuance? We hold that the trial court...