Opposition Brief — D-Landco v. Oklahoma Department of Transportation

No. 94-118 OFFICE OF THE CLERK |

mithy j

ee |

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

D-LANDCO, an Oklahoma Corporation,

and BARBARA LASH,

Petitioner,

STATE OF OKLAHOMA, ex rel.

DEPARTMENT OF TRANSPORTATION,

Respondent.

RESPONSE BRIEF OF RESPONDENT

TO PETITION FOR WRIT

OF CERTIORARI

STEPHEN P. GRAY

2865 East Skelly Drive

Suite 205

Tulsa, Oklahoma 74105

Telephone (918) 496-9258

MARK CAYWOOD

Oklahoma Department of

Transportation

200 N.E. 21st

Oklahoma City, Oklahoma 73105

(405) 521-2681

Attorneys for Respondent

E

i

QUESTIONS PRESENTED

1) Did Petitioner receive just compensation under

Amendment V to the United States Constitution at the

condemnation jury trial in 1992 related to the initial rezoning

of its property under the City of Tulsa Zoning Code and

Comprehensive Plan involving Corridor Districts and Corridor

Zoning back in 1985?

2) Did Petitioner receive just compensation at the

condemnation jury trial in 1992 on the issue of damages under

Amendment V to the United States Constitution after Petitioner

failed to pursue any of its available administrative and/or legal

remedies on its only rezoning application filed seven (7) years

previously in 1985?

3) Is the Petitioner barred by waiver, laches, and

estoppel from raising its complaint related to substantive due

process under the unique facts of this case?

4) Does the allegation of violation of the rule of

sequestration after extensive in camera examination of a

government "development trends" expert in which the Trial

ll

Court ruled no violation of the Rule of Sequestration foist any

justiciable issue upon this Court with regard to just

compensation under Amendment V and the Fourteenth

Amendment to the United States Constitution?

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

I. OPINIONS BELOW

II. OBJECTION TO JURISDICTION

ITI. STATEMENT OF THE CASE

The Facts

A.

iil

TABLE OF CONTENTS

The evidence demonstrated that

Petitioner never preserved its

right to appeal the zoning decision

of the Tulsa Metropolitan Planning

Commission (TMAPC) and the City

oe ee ee

The City of Tulsa did not attempt

to depress market value of Petitioner’s

land through its zoning action.

Petitioner’s witnesses testified

that the property’s highest and

best use and value was commercial,

industrial, and multi-family and

and had a medium intensity use .....

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IV.

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D. Respondent’s witnesses testified

to a non-agricultural highest

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ARGUMENT AND AUTHORITIES ........

A. Summary of Argument ............

PROPOSITION I. PETITIONER

RECEIVED JUST COMPENSATION AT

THE CONDEMNATION JURY TRIAL IN

A res neg aie ee

I. Petitioner’s contention it

was denied a fair trial due

to an administrative zoning

decision by the City of

Tulsa seven years before trial

eo ee

A. Statute of Limitations

bars Petitioner’s claim ........

B. The City’s administrative

zoning action in 1985 was

consistent with the Compre-

hensive Plan and Development

ee

.. The City did not attempt to

depress market value of

Petitioner’s land through

its zoning action. ...........

1]

Vv

D. Petitioner presented evidence

of commercial, industrial,

and multi-family apartment

uses am@ values ............ 18

PROPOSITION II. THE TRIAL COURT

PROPERLY ALLOWED ODOT’S WITNESS

JANICE K. GORDON TO TESTIFY IN

ACCORDANCE WITH THE DISCRETION

GP TEE SMS os as he ee oo 19

CONCLUSION

PE x ve vic 3 ow os oe A-1 through A-39

v1

TABLE OF AUTHORITIES

CASES: .

April v. City of Broken Arrow,

775 P.2d 1347 (Okla. 1989) ..

Clark v. Continental Tank

Co. , 744 P.2d 949 (Okla.

tr

Copperweld Steel Co. v.

Industrial Com. of Ohio,

324 U.S. 780, 89 L.Ed. 1363,

65 S.Ct. 1006 ...........

General Talking Pictures

Corp. v. Western Elec. Corp..,

304 U.S. 175, 178 (1938) ...

Kissinger v. City of Los

Angeles, 327 P.2d 10

(Cal. 1958) ............

Lloyd v. State, 428 P.2d

262 (Okla. 1967) .......

U.S. v. Johnson, 268 U.S.

220, 227 (1925) ..........

Page

ere ... 20,21

Vil

OKLAHOMA STATUTES:

veoh WEE. ¢) ee 12,22

12 0.S. 1991 § 2615 ........ 2.» 221,28

TREATISES:

2. me err + me ak

9 A.L.R. 3rd 291, 304 and 305 .......---- 16

No. 94-118

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

D-LANDCO, an Oklahoma Corporation;

and BARBARA LASH,

Petitioner,

VS.

STATE OF OKLAHOMA, ex rel.

DEPARTMENT OF TRANSPORTATION,

Respondent,

RESPONSE BRIEF OF RESPONDENT TO PETITION

FOR WRIT OF CERTIORARI

I. OPINIONS BELOW

This Court is in effect being asked to review the Jury

Verdict and Judgment of the District Court of Tulsa County,

State of Oklahoma, dated March 12, 1992. Although

Petitioner technically seeks certiorari from the Order of the

Supreme Court of Oklahoma dated April 19, 1994 denying

.

Petitioner’s request for Writ of Certiorari from the Court of

Appeals of the State of Oklahoma, the Oklahoma Supreme

Court did nothing more than summarily affirm the Court of

Appeals ruling which had affirmed the District Court’s ruling.

In its unpublished and non-precedential opinion, the Oklahoma

Court of Appeals refuted Petitioner’s constitutional claims:

Landowner was not, however, denied due

process; rather it failed to use the process

available to it. By failing to appeal the zoning

decision of the TMAPC, Landowner has long

since waived any right to review the TMAPC’s

zoning decision. Therefore, this issue is not

properly before this Court. See Patterson v.

Stanolind Oil & Gas Co., 77 P.2d 83, 95

(Okla. 1938) (due process issue not properly

before court where no appeal taken from order

complained of) [Emphasis added. ]

The record does not support the alleged abuse of

discretion in allowing the testimony of Janice Gordon. The

District Court’s examination of Gordon supports its decision

to allow he: testimony. Accordingly, Respondent asks this

Court to deny Petitioner’s Writ of Certiorari.

Il. OBJECTION TO JURISDICTION

Respondent objects to this Court assuming jurisdiction

based upon Petitioner’s untimely failure and delay in

exhausting any of its administrative and/or legal remedies

related to its initial zoning application in 1985, seven (7) years

prior to the condemnation jury trial in 1992. Case law has

ee

held that where a Petitioner had not pursued the remedy

afforded by state law for the vindication of any constitutional

right it claimed was violated, this Court must dismiss the

appeal and deny certiorari pursuant to the holding of

Copperweld Steel Co. v. Industrial Com. of Ohio, 324 U.S.

780, 89 L.Ed. 1363, 65 S.Ct. 1006 (1945).

STATEMENT OF THE CASE

The Facts

Petitioner’s view of the facts can at best be described

as a slanted view of the evidence presented at trial. Petitioner

knows, or at least should know, that this Court will not grant

certiorari to review the evidence or inferences drawn from it.

General Talking Pictures Corp. v. Western Elec. Corp., 304

U.S. 175, 178 (1938). As Justice Holmes wrote: "We do not

grant a certiorari to review specific facts." U.S. vy. Johnson,

268 U.S. 220, 227 (1925). Given this standard of review, an

appropriate review of the facts is as follows:

A. The evidence demonstrated that Petitioner never

preserved its right to appeal the zoning decision of

the Tulsa Metropolitan Planning Commission

(TMAPC) and the City of Tulsa in 1985.

Petitioner contends that it failed to receive just

compensation. This is based on its duplicitous allegation that

"state and local officials worked together to restrict its

property’s uses through zoning laws and thus depress its

ee

value." However, Petitioner omits to fully inform this Court

of the circumstances surrounding its 1985 Zoning Application

for Corridor Zoning as well as the true nature of Corridor

Zoning under the City of Tulsa Zoning Code.

Corridor Zoning is only allowed in Corridor Districts.

Said Districts are from the edge of an existing and/or proposed

expressway to the next major arterial street under the City of

Tulsa Comprehensive Plan and Zoning Codes. [Transcript,

Testimony of Wayne Alberty, p. 132.] A-13; [Transcript,

Testimony of Robert Gardner, p. 479, p. 482, p. 490.] A-19--

A-22. One hundred eleven (111) acres of the Petitioner’s 139

acres was contained in what is known as the "Corridor

District." The City of Tulsa granted Petitioner’s Corridor

Zoning request on this 111 acres. The remaining 28 acres was

never in the "Corridor District" because it was on the

expressway alignment and, hence, the City of Tulsa refused to

rezone Petitioner’s property to Corridor Zoning. Petitioner

never appealed this denial of zoning to the District Court and,

thus, never exhausted its available legal and/or administrative

remedies in 1985. In addition, Petitioner never sought to

obtain any other zoning on the remaining 28 acres zoned AG

("Agricultural Zoning") [Transcript, Testimony of Wayne

Alberty, pp. 154-155.] A-14, and it was unrefuted at trial that

this could have been done. [Transcript, Testimony of Robert

Parmele, p. 198.] A-16. [Transcript, Testimony of Robert

Gardner, pp. 490-493.] A-21--A-23. Indeed, the property

immediately to the south of Petitioner’s 28 acres zoned AG

x =

was in the expressway alignment and was zoned for

Residential Single Family ("RS-3"). A-38--A-39. It was also

undisputed that had Petitioner asked for this RS-3, it would

have been granted. [Transcript, Testimony of Robert F.

Gardner, p. 493.] A-23.

B. The City of Tulsa did not attempt to depress market

value of Petitioner’s land through its zoning action.

Petitioner has accused the City of Tulsa and Oklahoma

Department of Transportation ("ODOT") of trying to "freeze"

its property based upon the speculations of two of its

witnesses, Mr. Alberty and Mr. Parmele, through the zoning

decision of the City of Tulsa in 1985. However, Petitioner as

usual fails to disclose the whole story with regard to the

testimony produced at trial. Mr. Parmele testified he was an

expert in real estate appraisal and refuted Petitioner’s "freeze

theory" on Petitioner’s direct examination of him:

Q. So the value of the property would

remain lower if the property remained in

an AG Zoning classification.

A. In their mind. Not in mine, but in

theirs. [Emphasis added. ]

[Transcript, p. 192] A-14.

This freeze theory dissolves upon a review of Robert

Gardner’s testimony. Mr. Gardner was the Deputy Director

of the Indian Nations Council of Government which provides

planning and zoning support to the five member zoning and

. =

planning panel known as the TMAPC. He was the only

witness tendered at trial as an expert in the Tulsa Zoning

Code, the Comprehensive Plan of Tulsa, the Tulsa

Development Guidelines and the Tulsa Zoning Code and

Platting Regulations. He refuted Mr. Alberty’s testimony as

follows:

Q. Sir, if Mr. Alberty made a statement

that it’s your intended object or the

City’s intended object to depress values

of property through the zoning process

in the path of the Mingo Valley

Expressway, or any expressway, do you

have an opinion as to the veracity of

that statement, sir?

A. That is an incorrect statement.

[Trial Transcript, p. 493] A-22.

ot Petitioner’s witnesses testified that the property’s

highest and best use and value was commercial,

industrial, and multi-family and had a medium

intensity use.

Petitioner complains that governmental actions that

allegedly froze the value of its property, yet its witnesses were

allowed to totally contradict this "freeze" theory in their

testimony on direct examination. Indeed, Mr. Parmele who

was Chairman of the TMAPC testified on direct examination:

Q. All right. I’ve asked you to take a look

at the D-Landco property from a highest

and best use standpoint, have I not?

©

Q.

A.

Medium intensity development includes restaurants and

office warehouses under the City of Tulsa Comprehensive

Plan, Development Guidelines and Zoning Code. Further, the

area of land Mr. Parmele was testifying about was the 28 acres

ss

Yes, you have.

Do you have an opinion, sir, as the

chairman of the planning commission,

as to the highest and best use of that

property?

I have an opinion that the highest and

best use will be some type of medium

intensity uses.

* kK

All right, sir. What about property

adjacent to Tulsa Junior College and

8ist Street?

Based on the presence of the junior

college, I think it would lend itself to a

medium intensity development.

All right, sir. So you could put a

restaurant there maybe, like the

restaurant across the street?

That would be possible.

And you might put an office warehouse

on that property?

It would be possible.

(Transcript, pp. 192-193] A-15--A-16.

in the path of the expressway that was zoned AG.

Petitioner’s value witnesses did not appraise the 28

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acres as AG, but as commercial, industrial, and multi-family.

Mr. Keele, Petitioner’s appraiser, testified to this on direct

examination as follows:

Q. What sir, in your opinion, is the highest

and best use of the D-Landco property?

A. Commercial, industrial, and multi-

family.

Q. And what was it on June the 8th of --

9th of 1990?

A. Commercial, industrial, high density

residential.

[Transcript, p. 247] A-17.

Petitioner’s other appraisal witness, Ms. Christine

Lietzke, testified on direct examination that all of Petitioner’s

property had a commercial, not an agricultural. highest and

best use as follows:

Q. What’s your opinion as the highest and

best use of this piece of property?

A. Commercial.

Q. Would that be true with respect to the 28 acres

in the take area?

A. In my opinion before the take, it was all

commercial.

(Transcript, p. 366] A-18--A-19.

In light of its witnesses’ testimony concerning a non-

agricultural highest and best use, its attempts to foist this

freeze theory of an agricultural price upon this Court is

without merit.

= -

D. Respondent’s witnesses testified to a non-agricultural

highest and best use.

The coup de grace in this whole specious argument of

the freeze theory is that the Respondent’s witnesses did not

present AG as the highest and best use or value for the

Petitioner’s property. Ms. Janice K. Gordon was tendered as

a market trends and highest and best use expert for

development of real estate. She did an exhaustive analysis of

property development in this area. She testified as follows:

Q. Did you draw any conclusion as to a

highest and best land use for the D-

Landco property based on your survey

of this study area?

A. Yes, sir.

Q. And what can you tell the ladies and

gentlemen of the jury about that?

A. What this particular thing [exhibit] tells

me is that based on the history of land

uses there, that the highest and best use

for the D-Landco property would be

single family residential.

[Transcript, p. 553] A-24--A-25.

Respondent’s value witness was an appraiser named

Rusty Richardson. Mr. Richardson testified to a non-

agricultural highest and best use and value after reviewing the

market:

Q. What conclusion did you draw from

your study of the marketplace with

regard to more intense zonings

« Bo

developing single-family residential, Mr.

Richardson?

A. Well, the only true market right now is

for single-family. That is the highest

and best use in most cases in this

vicinity. ...

(Transcript, p. 610] A-25.

IV. ARGUMENT AND AUTHORITIES

A. Summary of Argument

Simply put, Petitioner asks this Court to grant certiorari

because it disagrees with the jury verdict at the District Court

level that was affirmed by the Oklahoma Court of Appeals and

the Oklahoma Supreme Court.

Petitioner argues that the Respondent and other

governmental entities sought to "freeze" its property with an

agricultural value in its only zoning request in 1985 (seven

years before the trial). It fails to disclose to this Court it

never appealed the City of Tulsa’s zoning action in 1985, that

the City’s action was in accordance with duly enacted zoning

laws, that Petitioner never-sought to rezone its property again,

and that it presented substantial amounts of evidence as to a

commercial, industrial and multi-family highest and best use

and value for its land at trial. The jury chose not to believe

Petitioner’s evidence.

Petitioner argues that the District Court, Oklahoma

Court of Appeals, and the Oklahoma Supreme Court erred in

holding there was no alleged abuse of discretion in allowing

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the testimony of Respondent’s highest and best use witness,

Janice Gordon. Petitioner fails to disclose the lengthy in

camera examination of Ms. Gordon in which the Trial Judge

held there was no problem with Ms. Gordon testifying at trial.

PROPOSITION I.

PETITIONER RECEIVED JUST

COMPENSATION AT THE

CONDEMNATION JURY TRIAL IN 1992.

j. Petitioner’s contention it was denied a fair trial due

to an administrative zoning decision by the City of

Tulsa seven years before trial is without merit.

A. Statute of limitations bars Petitioner’s claim.

Petitioner contends it was denied a fair trial due to an

administrative zoning decision by the City of Tulsa in 1985,

seven years prior to the trial of this matter. It was unrefuted

at trial that the Petitioner never contested the City’s

administrative decision. [Transcript, Testimony of Wayne

Alberty, pp. 154-155.] A-14. [Testimony of Robert L.

Parmele, Jr., p. 198.] A-16. [Testimony of Robert F.

Gardner, p. 490.] A-20--A-2i. Surely, the failure of the

Petitioner to take any affirmative action on its part to timely

contest the City’s administrative action in 1985 constitutes a

waiver On its part. As more than five years have elapsed since

the City’s zoning decision, clearly the Petitioner is precluded

from asserting such a claim pursuant to the Statute of

- 12.

Limitations codified in 12 O.S. 1992 §95(7) as follows:

Civil actions other than for the recovery of reai

property can only be brought within the

following periods after the cause of action shall

have accrued and not afterwards; *** (Seventh);

an action for relief not herein before provided

for can only be brought within five (5) years

after the cause of action shall have accrued.

B. The City’s administrative zoning action in 1985 was

consistent with the Comprehensive Plan and

Development Guidelines.

A careful scrutiny of the basis for the City’s action in

1985 demonstrates the Petitioner was not denied a fair trial.

The City’s zoning decision was a lawfui exercise of its police

powers. The City’s denial of Corridor ("CO") zoning of the

28 acres in the path of the expressway was made in accordance

with the provisions of the Comprehensive Plan and

Development Guidelines of the City of Tulsa. [See Transcript,

Testimony of Robert F. Gardner, p. 490.] A-20--A-21.

Corridor zoning for the subject 28 acres was not proper since

it fails to satisfy the essential requirement for eligibility per the

Comprehensive Plan and Development Guidelines. Said

requirement is the location outside the expressway alignment

and not within the expressway alignment. The Metropolitan

Development Guidelines for the City of Tulsa sets forth the

Criteria for Corridor (CO) zoning in Corridor Districts at pp.

7, 9 and 10, as follows:

« ¥3 «=

CORRIDORS

Corridors are located along freeways. . . .

[Emphasis added.] A-6.

*x* *K *

CORRIDORS - The criteria, permitted land use

and development conditions of the Corridor

[District] are as follows: * * *

CRITERIA:

Land situated adjacent to

existing, programmed (right-of-

way acquired) or planned

freeways. . . . No use is

permitted as a matter of right in

the Corridor Zoning District.

[Emphasis added.} A-8.

* * *

DEVELOPMENT CONDITIONS:

l. Only land _ situated

adjacent to a developed freeway

or freeways where the right of

way has been acquired (land

acquisition program instituted

which includes the subject

property) and which is bounded

by arterial streets will be

considered for Corridor Zoning.

[Emphasis added.} A-11.

The language is clear and unambiguous, providing that

és

only lands "adjacent to" and not in the path of an expressway

are eligible for Corridor ("CO") zoning as these are the areas

of the Corridor District. Robert F. Gardner, the Deputy

Director of the Indian Nations Council of Governments

("INCOG"), was the only witness tendered at trial as an expert

in the Tulsa Zoning Code, Comprehensive Plan, Development

Guidelines and the Tulsa Zoning Code and Platting

Regulations [Transcript, Testimony of Robert F. Gardner, p.

471.] A-19. He testified about the eligibility of D-Landco’s

property in the path of the expressway for CO zoning:

Q. Sir, have you reviewed the minutes

associated with the zoning of the D-

Landco property back in 1985?

A. Yes, I have.

What did they ask for at that time, sir?

If you recall.

A. They asked for corridor zoning. The

property was zoned for agricultural as |

recall.

Q. Okay. It wes totally zoned agricultural

and they were asking to change it?

A. Yes.

©

Q. Now, again, can you get corridor zoning

under the comprehensive plan in the

path of the Mingo Valley Expressw2y?

A. No, you cannot. It’s not consistent with

the plan.

Q. Could they have gotten some other type

of zoning? Besides corridor zoning?

_

A. If they’d have asked for it. Anything

that should have been appropriate under

the yellow. We would grant a single-

family had they asked for it.

(Transcript, p. 490.] A-21--A-22.

In the City of Tulsa, an applicant may only obtain CO zoning

in a Corridor District. A Corridor District lies outside the

Mingo Valley Expressway. The testimony of Robert F.

Gardner corroborates this:

Q. Is the expressway right of way in a

Corridor district?

A. No, it is not.

(Transcript, p. 482.] A-20.

The City’s decision on Petitioner’s land in 1985 was consistent

with the treatment afforded all other properties similarly

situated in the path of the extension of the Mingo Valley

Expressway. A partial copy of the zoning map clearly shows

there was RS-3 and AG zoning primarily in the path of the

Mingo Valley Expressway. A-38--A-39.

c The City did not attempt to depress market value of

Petitioner’s land through its zoning action.

Petitioner has accused the City of trying to "freeze" its

property based on the alleged speculations of its witnesses

Alberty and Parmele. However, Petitioner’s "freeze"

argument melts upon a close scrutiny of the testimony from the

trial transcript. For instance, Mr. Parmele on direct

* . - : a 4 i

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examination by the Petitioner admits he is an expert in real

estate appraisal and that he does not believe the AG zoning

depressed the vaiue of Petitioner’s land. —[Transcript,

Testimony of Robert L. Parmele, p. 192, Il. 5-10.] A-14--A-

16.

In addition, Mr. Gardner flatly denied it was his or the

City’s intended object to depress the value of properties

located in the path of the Mingo Valley Expressway through

the zoning process. [Transcript, Testimony of Robert F.

Gardner, p. 493, Il. 2-23.] A-22.

In April v. City of Broken Arrow, 775 P.2d 1347 (Okla.

1989), the Oklahoma Supreme Court held at page 1355 that as

far as the United States Constitution is concerned, only the

most extreme and onerous regulations can constitute a

regulatory taking [which Petitioner has indirectly alleged].

The Oklahoma Supreme Court notes in dicta at p. 1355:

City’s mere refusal to rezone owner’s property

cannot be considered as either an actual taking

or a de facto taking. [Emphasis added. ]

There was sufficient evidence presented at trial to establish

that the City’s action in 1985 in not rezoning the 28 acres from

AG to CO was a legitimate exercise of its police powers and

not a taking.

Petitioner cites 9 A.L.R. 3rd 291, 304, and 305 for the

proposition that courts have vigorously condemned as

confiscatory the actions of a public body in denying rezoning

merely for the purpose of decreasing land values in order to

7

lower acquisition costs in eminent domain proceedings.

Petitioner fails to point out to the Court that 9 A.L.R. 3rd 291

on Eminent Domain--Damages Zoning contains a footnote

numbered 20 at the bottom of p. 305 which reads as follows:

20. This should not be taken to mean that the

condemning authority may not have the

property evaluated in light of zoning restrictions

which it enacted so long as the restrictions were

enacted in good faith and not for the purpose

of controlling the cost of condemnation.

[Emphasis added. ]

Petitioner also cites Kissinger v. City of Los Angeles,

327 P.2d 10 (Cal. 1958), for the proposition that governmental

zoning action used to down zone property to depress values is

invalid. However, it fails to set forth the Court’s holding at

page 14 that "if there is any reasonable justification of the

action of the council in passing the ordinance the court may

not substitute its judgment for that of the trial court."

[Emphasis added. ]

Surely, the testimony of Mr. Gardner concerning the

lawful purposes of CO zoning coupled with the Comprehensive

Plan and Development Guideline criteria for CO zoning

satisfies this rule with regard to the City’s administrative

zoning action in 1985. This is especially so given the clearly

distinguishable facts in this case from those in Kissinger,

supra. \n Kissinger, the City Planning Commission violated

Plaintiff's procedural due process rights by passing an

ordinance that down zoned only the property of the Plaintiff

ne En Ieee einen

~

from commercial to residential in the airport flight path of

property to be acquired for the City’s own use. This was done

without public hearing, in violation of the City of Los

Angeles’ own rules, treating the Plaintiff's property differently

than other similarly situated properties in the area. Further,

there was strong evidence in the motion and discussions of the

council members who voted that the main purpose was to

acquire the property at a lesser price for use by the airport.

No such facts exist in the case before this Court showing a

down zoning of Petitioner’s property, disparate treatment of

Petitioner when compared to other properties, . id no violation

of due process. Hence, nothing warrants the overturning of

the City of Tulsa’s zoning decision in 1985, based upon the

previously cited trial transcript.

D. Petitioner presented evidence of commercial,

industrial, and multi-family apartment uses and

values.

Finally, as stated in Paragraph C of The Facts

contained herein, the Petitioner put on substantial evidence of

a highest and best use that was commercial, industrial and

multi-family with appraisal values reflecting the same. How

can it then complain of government action designed to depress

values when its own evidence contradicts such an assertion?

Moreover, the Respondent’s evidence was also for non-

agricultural uses and values as cited in Paragraph D of The

Facts.

i lt i tt UI itt AO tlt OC

~

The jury awarded an amount of damages that was

neither Petitioner's value conclusion nor the Respondent’s

value conclusion. Indeed, there was a Majority Report of

Commissioners setting forth an estimate of just compensation

at $1,200,000, and a Minority Report of Commissioners

setting forth an estimate of just compensation at $605,620. A-

32--A-37. The Respondent paid the $1,200,000 into Court and

both parties filed a demand for jury trial. The Petitioner

sought $3,000,000 in damages and the Respondent presented

$534,200 in damages. The jury verdict of $708,200 was in

between those two values. However, as noted in the case of

Lloyd vy. State, 428 P.2d 262 (Okla. 1967):

. . . The fact that there is much disparity as to

the amount of damages between the witnesses

for the Plaintiff and Defendants, and the trial

court chooses to accept the lowest amount of

estimated damages, is not in error in and of

| oe

PROPOSITION I.

THE TRIAL COURT PROPERLY

ALLOWED ODOT’S WITNESS JANICE K.

GORDON TO TESTIFY IN ACCORDANCE

WITH THE DISCRETION OF THE

COURT.

The Petitioner has alleged that the Trial Court erred in

exercising its discretion in allowing Respondent’s expert

2

witness, Mrs. Janice Gordon, to testify.

Janice K. Gordon was certified by the trial court as an

expert witness for the Plaintiff:

MR GRAY: Your Honor, at this time we'd

like to tender Mrs. Gordon as an

expert in market trends with

regard to land uses in southeast

Tulsa.

THE COURT: _ Very well.

(Transcript, p. 544, ll. 19-22.] A-24.

The transcript shows there was no objection by Petitioner to

her certification as an expert witness. [Transcript, p. 544, Il.

22-25; p. 545, ll. 1-2.] A-24.

Common iaw allowed a trial court to exercise its

discretion in allowing expert witnesses to remain in the

courtroom and the Oklahoma Supreme Court previously

considered the effect of the enactment of 12 O.S. 1991 §2615

upon the common law rule of sequestration in Clark v.

Continental Tank Co., 744 P.2d 949 (Okla. 1987). At page

952 the Oklahoma Supreme Court stated that aliowing an

expert witness in the courtroom was in the trial court’s

discretion: "...It is clear that under the common law in

Oklahoma such would have been allowed, absent abuse of the

trial court’s discretion.” After a discussion of the legislative

history, the Oklahoma Supreme Court concluded at page 953

the common law rule was still in effect: "We cannot conclude

that the legislature, either intentionally or unintentionally,

me

altered that rule of procedure by adoption of the Evidence

Code.”

Appellant’s citation of the statutory language contained

in 12 O.S. 1991 §2615 is in error. Subsequent to the Clark

decision, the legislature modified the statute to include the

expert witness exception to the Rule of Sequestration by

enacting Laws 1991, Chapter 62, Section 5, effective

September 1, 1991. The revision in said Statute reads as

follows:

3. A person whose presence is shown by a

party to be essential to the presentation of the

party’s cause;....

This statute was in effect at the time of trial.

After a lengthy in camera examination of Ms. Gordon

by Petitioner, the Court at page 532 asked her:

THE COURT: Ms. Gordon, let me ,ask

you _ this. Is there

anything at all about what

you have heard, either

from your husband or

anyone else in the last

three days since the trial

started, that is going to

change, color, or in any

way affect your

testimony that you're

going to give?

MRS. GORDON: No, sir.

THE COURT: Well, I don’t find

eee ene eee ee a

. P

anything that’s violative

of the rule. It is a

discretionary thing so I

think I should overrule

your request, Mr. Levy.

[Transcript, p. 532.] A-

23--A-24.

The Trial Court acted well within its discretionary authority in

allowing Janice Gordon to testify at trial, given Title 12 O.S.

1991, §2615, and the careful scrutiny of Mrs. Gordon by

Petitioner’s counsel and the trial judge. Moreover, Ms.

Gordon was never in the courtroom during these proceedings

except when she was called as a witness. The judgment of the

Trial Court should be affirmed.

CONCLUSION

In summary, the Petitioner’s Propositions I and II

should be dismissed for the following reasons:

l. There is a statute of limitations barring

Appellant from raising this claim in this appeal.

[Accord, Title 12 O.S. 1992 §95(7)];

, The weight of the evidence demonstrated that

the City lawfully exercised its police powers in

the rezoning request of the Appellant in 1985;

3. The only evidence of a highest and best use and

value for Petitioner’s property at trial was

residential, office, industrial and commercial,

not agricultural.

=

(ae.

4. The Trial Court did not abuse its discretion in

overruling Petitioner's in camera motion to

disqualify Ms. Gordon.

Respectfully submitted,

Mark Caywood Rte VA Z

Chief of Legal Division St€phen P. Gray/ OBA #9356

Oklahoma Department of 2865 East Skelly Dri ite 205

Transportation Tulsa, OK 74105

200 N.E. 21st Street (918) 747-9797

Oklahoma City, OK 73105

(405) 521-2681

Attorneys for Respondent

State of Oklahoma, ex rel.,

Department of Transportation

, eee ee

re ne er ee

A -1

METROPOLITAN DEVELOPMENT GUIDELINES

and

ZONING MATRIX

Parts of the Comprehensive Plan

for the

Tulsa Metropolitan Area

As adopted by Resolution No. 1658:630

Tulsa Metropolitan Area Planning Commission

(TMAPC)

TMAPC Approval: August 5, 1987

City Commission Approval: August 21, 1987

County Commission Approval: September 14, 1987

ee

A -2

TABLE OF CONTENTS

and

LIST OF FIGURES

Page

*x kK *

DEVELOPMENT DISTRICT CONCEPT

*x kK *

Corsets... & élite eas es se 7

*x kK *

DEVELOPMENT DISTRICT IMPLEMENTATION

POLICY

Ot: re i]

A -3

INTRODUCTION

The Metropolitan Development Guidelines consist of four

elements; Development District Goal and Objectives,

Functional Area Goals and Objectives, Development District

Concept, and Development District Implementation Policy.

The Development Guidelines, as policy statements, are

intended to provide increased efficiency and consistency in the

decision making process. They are directed toward the issues

of the quality of development and the living environment, and

are essentially neutral in regard to the Balanced Metropolitan

Growth Policy. They should not be interpreted as a land use

plan or as a zoning code, but rather as a framework or guide

within which sound planning, zoning, subdivision, investment

and building decisions can be made by individuals and public

officials and agencies. It is intended that, in the application of

the Development Guidelines, an evaluation of existing

conditions, including land uses, existing zoning and site

characteristics, shall be considered.

The Development District Goal and Objectives, and the

Functional Area Goals and objectives define the desired

character and quality of development to be achieved. In this

context, goals are long-range aims, while objectives are shorter

range steps toward the fulfillment of goals. The Development

District Concept provides the conceptual basis for development

policies, while the Development District Implementation Policy

sets forth the actions necessary to achieve the adopted policies.

Fa

et a

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a

A -4

DEVELOPMENT DISTRICT GOAL AND OBJECTIVES

GENERAL GOAL

Provide a quality living environment (housing,

working, shopping and leisure) for all residents in a

diversified community, so that every citizen has

available a choice of a variety of lifestyles, and in a

manner which will maintain or improve the quality of

the natural and manmade environment.

GENERAL OBJECTIVE

Guide the metropolitan area’s physical growth so that

it may become an even more pleasant, desirable and

attractive place in which to live, work and play in an

area offering stabilized development, good living and

working conditions, and a sound economic base and tax

structure; and to assure maximum benefit to the people

from public expenditures and private investment,

through economical employment of resources,

prevention of duplication and waste, and enhancement

of property value.

DEVELOPMENT OBJECTIVES

:, Develop a flexible framework for decision

making responsive to change, in order to

maintain long-term viability and continuity in

metropolitan development policy.

ya Differentiate and classify components of the

metropolitan area so that a more rational

A -5

approach to land use planning can be

effectuated.

Locate various intensities of development in

accordance with manmade and natural systems.

Recognize existing high intensity areas

established within the metropolitan area, and

place additional uses of this type in optimum

locations.

Develop areas only to the intensity that will not

overload or overcrowd the planned public

services and facilities.

Develop areas considering slope, soil, rock,

vegetation and natural drainage characteristics.

Encourage quality development by the use of

more responsive development tools, e.g.

Planned Unit Development (PUD), site plan

review, etc.

Initiate a major effort to make zoning a positive

force in metropolitan development, rather than

a negative one.

Develop reasonable planning standards for site

design.

A -6

DEVELOPMENT DISTRICT CONCEPT

* * *

CORRIDORS

Corridors are located along freeways and are to contain

major employment and region-serving functions in

concert with a relatively high density residential base.

No use, however, is permited as a matter of right in

the Corridor Zoning District. The type and intensity of

use is subject to the Corridor Site Plan review and

approval process as specified in the Zoning Code. The

basic characteristics of this component are:

1. Uses that are more intense in nature should

have high exposure and convenient access to

high capacity, metropolitan transportation

facilities.

y I This multi-functional grouping of land uses

should be interrelated by internal vehicular and

pedestrian traffic systems, and the entire

corridor should be ultimately connected to a

metropolitan wide transit system.

3. Corridors should have appropriate access to

primary and secondary arterial streets.

ee een

A -7

Corridors should have a maximum depth from

the adjacent freeway.

Within corridors, the higher intensity

development should be designed by utilization

of setbacks, transitional uses, and other

separations to be compatible with low intensity

development.

DEVELOPMENT DISTRICT IMPLEMENTATION

POLICY

* Ok

CORRIDORS

The criteria, permitted land use and development

conditions of the Corridor are as follows:

CRITERIA:

Land situated adjacent to existing, programmed

(right-of-way acquired) or planned freeways is

generally considered to be within either a

Subdistrict or a Node, as are other areas of the

Development District. No use is permitted as

a matter of right in the Corridor Zoning

District. The type of use and corresponding

intensity of -use is subject to the Corridor Site

plan review and approval process as specified in

the Zoning Code. Land may be deemed

appropriate for high intensity development if the

freeway is built or the right-of-way acquired

(land acquisition program instituted which

includes the subject property), unless in the

particular instance the configuration of the

corridor or _ existing development has

A -9

significantly impaired the accessibility of the

corridor or rendered the achievement of sound

land use relationships impractical. Thus, in

order for high intensity uses to occur, a zoning

application must first be made and granted

placing a parcel in the Corridor Zoning

District. Once a parcel has been designated as

being in this zoning classification, high intensity

development would only be allowed in

compliance with an approved site plan.

Additional criteria which apply are:

l. The arterial streets (parkway, primary

and secondary) that bound land adjacent

to expressways and imtersect or

interchange with expressways are

designated as Freeway Access Arterial

Streets (see Figure 2, page 11). The

arterial streets (parkway, primary and

secondary) that bound land adjacent to

expressways and that do not intersect or

interchange with am expressway are

designated as Corridor Access Arterial

Streets (see Figure 2, page 11).

§ In order that the capacity of the arterial

street and expressway system may be

maintained, access for a corridor

development shall be principally from

corridor collector streets.

3. No full movement access to the

Corridor will be allowed along the

A -10

freeway access arterial street within 600

feet of the arterial intersection, or within

600 feet of the centerline of the freeway

ramp.

4. There should be a maximum of three

collector intersections, with full

movement access, allowed along any

segment of the corridor access arterial

street. A spacing standard of 1,000 feet

between collector streets connecting with

a corridor access arterial street should

be used unless topography would

prohibit meeting this standard.

5. The Corridor internal collector street

system, as shown in Figure 2 (page 11),

should provide access to all tracts. This

system should intersect as near as

possible to the midpoint of the freeway

access arterial street where access

restrictions permit.

LAND USE:

1. Permits consideration of residential and non-

residential uses, EXCEPT the following: Use

Unit 3 - Agriculture, Use Unit 24 - Mining and

Mineral Processing, Use Unit 25 - Light

Manufacturing and Industry, Use Unit 26 -

Moderate Manufacturing and Industry, and Use

Unit 27 - Heavy Manufacturing and Industry.

2 The permitted intensity within the Corridor

A -11

Zoning District shall be that permitted by the

approved Corridor Site Plan, but not the exceed

the maximum intensity as specified in the

Zoning Code.

DEVELOPMENT CONDITIONS:

:. Only land situated adjacent to a developed

freeway or freeways where the right-of-way has

been acquired (land acquisition program

instituted which includes the subject property),

and which is bounded by arterial streets will be

considered for Corridor zoning.

2. Within areas previously zoned as Corridors, but

within which the expressway right-of-way has

not been acquired, the intensity of a proposed

development may be limited to low or medium

intensity, based on the anticipated scheduling of

right-of-way acquisition and evaluation of

existing land use and site conditions.

2. The Corridor shall have a maximum land area

of 3,000 square feet for every foot of

expressway frontage.

A -12

IN THE DISTRICT COURT FOR TULSA COUNTY,

STATE OF OKLAHOMA.

Case No. CJ-90-958

DISTRICT COURT

FILED

OCT 01 1992

DON E. AUSTIN, COURT CLERK

STATE OF OKLA. TULSA, COUNTY

THE STATE OF OKLAHOMA, ex rel.

Department of Transportation,

Plaintiff

VS.

D-LANDCO, an Oklahoma corporation,

and BARBARA LASH,

Defendants.

RECORD OF PROCEEDINGS had in the above-

entitled cause on March 9, 10, 11, and 12, 1992, before the

Honorable Ronald L. Shaffer, Judge of the District Court of

Tulsa County, State of Oklahoma, and a jury of twelve.

APPEARANCES:

MR. STEPHEN P. GRAY

2865 East Skelly Drive, Suite 205

Tulsa, Oklahoma

Attorney for the Plaintiff

MR. LOUIS LEVY

5314 South Yale, Suite 310

Tulsa, Oklahoma

Attorney for the Defendants

a

A -13

REPORTED BY:

Kathie Schiermeister, CSR, CP-RPR, CM

Official District Reporter

VOLUME I of III

(pp. 2-227)

DISTRICT COURT OF OKLAHOMA

Official Transcript - Copy

TESTIMONY OF MR. WAYNE ALBERTY:

Page 132, Lines 5 - 24

Q. So wouldn’t it be reasonable to say that corridor

zoning is somewhat of a project influence

resulting from the Mingo Valley Expressway?

A. Yes, that’s by -- that’s the sole purpose and

definition of a corridor district, to be adjacent

to high traffic expressways.

Q. M-. Alberty, I’m going to hand you what has

been marked as Defendant’s Exhibit No. 40. If

you would take a look at East 8ist Street.

Could you go one mile east on 81st Street

between Garnett and 129th East Avenue, if you

would. What type of zoning do you have on

the north side of 81st Street there?

A. The north side is R-1 zoning.

Now, R-1, that’s residential zoning for purposes

of the City of Broken Arrow, is it not?

A. Yes, that’s correct. That’s their low density

zoning.

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pete nnn pis eee eee

A -14

And what’s on the south side of 81st Street --

R-2.

And, again, is that a residential single-family?

>O>°0

Yes, it’s a single-family medium density.

Page 154, Line 22 through Page 155, Line 3

Q. Well, do you know if the property owner ever

came back in after 1985, based on your review

of the INCOG records, and ever requested the

AG-zoned areas of 1A and 2A to be zoned to

RS-3 or some other zoning use?

A. After 1985?

Q. Yes, sir.

A. Not to my knowledge.

TESTIMONY OF ROBERT L. PARMELE, JR.:

Page 192, Line 5 through Page 193, Line 23

Q. So the value of the property would remain

lower if the property remained in an AG

classification?

A. In their mind. Not in mine, but in theirs.

Q. Yes. Well, you’re an appraiser and a real

estate broker, are you not?

A. Yes.

Q. And there are no real estate brokers or

appraisers on the staff of the planning

commission, are there?

o>

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aamaranaes el

A -15

No, sir.

All right, They’re just doing it from a zoning

standpoint.

Yes, that’s correct.

And wouldn’t you agree with me that, generally

speaking, agricultural zoning -- land that is

agriculturally zoned will sell for less money

than land that is zoned commercially.

Generally speaking, that would be true.

All right. I’ve asked you to take a look at the

D-Landco property from a highest and best use

standpoint, have I not?

Yes, you have.

Do you have an opinion, sir, as the chairman of

the planning commission, as to the highest and

best use of that property?

I have an opinion that the highest and best use

will be some type of medium intensity uses.

All right, sir.

Based on the physical facts of the surrounding

uses of the other properties.

Would any portion of the D-Landco property be

commercial as a highest and best use?

Yes.

Which portion?

The comprehensive plan, I believe the

development guidelines would call for the

corner ten acres of the property to be a

commercial use.

©

A -16

All right, sir. What about any of the property

adjacent to Tulsa Junior College and 81st

Street?

Based on the presence of the junior college, I

think it would lend itself to a medium intensity

development.

All right, sir. So you could put a restaurant

there maybe, like the restaurant across the

street?

That would be possible.

And you might put an office warehouse on that

property?

It would be possible.

Page 198, Lines 16 - 22

Q.

If D-Landco Corporation, after 1985, had

applied to rezone the property to RS-3, some

sort of more intense use than agricultural, of --

such as RS-3 particularly, could they have

gotten it, in your opinion?

In my opinion, if they would have applied for

rezoning on that particular tract that was

reserved for RS-3 or higher intensity, it would

be possible to get that, yes.

———————

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A -17

TESTIMONY OF MR. DALE KEELE:

Page 247, Lines 3 - 25

Q.

A.

Q.

o>

©

So growth is continuing in this area; is that

right?

Oh, yes, sir.

All right, sir. Let me ask you, sir, if you

arrived at an estimate of highest and best use

for the D-Landco tract.

Yes, sir, I have.

And define the term as you know it in the --

from a real estate appraisal standpoint.

The highest and best use is what would be

feasible, legal, appropriately supported,

physically feasible, and reasonably feasible.

What, sir, in your opinion, is the highest and

best use of the D-Landco property?

Commercial, industrial, and multifamily.

And what was it on June the 8th of -- 9th of

1990?

Commercial, industrial, high density residential.

What factors lend themselves to that sort of a

conclusion and that sort of use?

You can see the neighborhood, how it’s zoned

and how the uses are being -- the land is being

put to in the neighborhood. And this will give

you an idea of what the use for this property

would be. Being next to the junior college here

would indicate that any type of commercial use

would be greatly enhanced -- both of them

would be enhanced by it.

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————$—$—$——_$_———

Q.

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A -18

TESTIMONY OF MS. CHRISTINE LIETZKE:

Page 366, Lines 1 - 24

Please take the witness stand.

Define highest and best use for the jury

as you understand that term.

Highest and best use?

Yes.

Basically it’s the use that will return to the

owner the most money. In some very simple

terms.

What’s your opinion as to the highest and best

use of this piece of property?

Commercial.

Would that be true with respect to the 28 acres

in the take area?

In my opinion, before the take, it was all

commercial.

Okay. Do you know of any reason to suspect

that that property might ever be developed

residential in single-family homes? As a

highest and best use?

Not in my opinion.

What are the limiting factors to residential in

your opinion? On this tract of land.

Well, I don’t think a residential development is

a successful when it backs up to a highway. I

think the noise factor would be one. I have a

ee

A -19

real hard problem seeing this as anything but

commercial because of TJC, Golf World, and

everything around it.

TESTIMONY OF ROBERT F. GARDNER:

Page 471, Lines 12 - 18

MR GRAY: Your Honor, at this time

we would tender Mr. Gardner as an expert in

the Tulsa Zoning Code with regard to

comprehensive plan, the development

guidelines, and the Tulsa Zoning Code and

platting requirements.

THE COURT: Very well.

MR. LEVY: No objection, Your

Honor.

THE COURT: He’ll be so admitted.

Page 478, Line 21 through Page 479, Line 8

Q. Mr. Gardner, could you explain what you mean

by "potential corridor."

A. Okay. The corridor is a unique process. In

fact, it was developed as a part of the

development guidelines, so the zoning code and

the new code that we have, which was adopted

in 1970, did not even have corridor zoning in

it. In ’75 when the zoning code was amended

and recodified, we came out with the corridor

zoning classification. And as I stated, by

definition, it’s dependent upon an expressway

A -20

being there to serve the area. If the expressway

is there to serve the area, then we will consider

the potential for higher intensity type uses.

And here again, that depends upon also the

surrounding land use in a given area.

Page 482, Lines 3 - 17

Q.

A.

Is the expressway right of way in a corridor

district?

No, it is not. The expressway is the basis for

having potential corridor zoning. Without the

expressway -- I mean, the plan for the

expressway, you can’t have corridor zoning.

Well, are you telling me that corridor zoning is

project influence then, based on an expressway?

It’s based on the expressway. And that’s the

only basis that it can be considered and

approved.

Well, let me ask you this. Without a planned

expressway on the major street and highway

plan, then you’re not in a corridor district;

correct?

That’s correct.

And then you couldn’t get corridor zoning. Is

that correct?

That’s correct.

A -21

TESTIMONY OF MR. ROBERT F. GARDNER: (con't.)

Page 490

Q.

©

©

©

Sir, have you reviewed the minutes associated

with the zoning of the D-Landco property back

in 1985?

Yes, I have.

What did they ask for at that time, sir? If you

recall.

They asked for corridor zoning. The property

was zoned agricultural as I recall.

Okay. It was totally zoned agricultural and

they were asking to change it?

Yes.

Now, again, can you get corridor zoning under

the comprehensive plan in the path of the

Mingo Valley Expressway?

No, you cannot. It’s not consistent with the

plan.

Could they have gotten some other type

of zoning? Besides corridor zoning?

If they’d have asked for it. Anything that

would have been appropriate under the yellow.

We would grant a single-family had they asked

for it.

Have you heard of something known as RS-3

zoning, sir?

Yes.

Back in 1985, was RS -- excuse me, what is

RS-3 zoning, Mr. Gardner?

A.

Q.

©

Oro?

>

A -22

It stands for residential single-family. The 3

means that it’s a 60-foot-wide lot. 6,900 square

foot minimum block.

Page 493, Lines 2 - 24

Sir, if Mr. Alberty made a statement that it’s

your intended object or the City’s intended

object to depress values of property through the

zoning process in the path of the Mingo Valley

Expressway, or any expressway, do you have

an opinion as to the veracity of that statement,

sir?

That is an incorrect statement. The value of the

property in the path of the expressway is

whatever the land is worth, based upon the type

of zoning they can receive without that

expressway, and under the development

guidelines, what they might be expected to

receive. They could have received RS-3 under

the development guidelines without the

expressway. No one asked for it. So they

weren’t given RS-3.

Sir, there’s also been statements -- well, do you

know a man by the name of Mr. Bob Parmele?

Yes, sir.

Does Mr. Parmele speak for you, sir?

No, he does not.

Does he speak for the staff of the Indian

Nations Council of Governments?

No, he does not.

> ©

—-—+~——_—_—

A -23

Does he speak for the City of Tulsa?

No, he does not.

TESTIMONY OF MRS. JANICE K. GORDON:

Page 532, Lines 15 - 24

[BY MR. LEVY] I would at this time

move to have this witness’s testimony excluded

on the basis of Title 12, Section 2615, the so-

called rule of sequestration. The rule has been

violated in that this witness has discussed

critical testimony related to that testimony that

she’s been employed to present to the jury with

her husband. For the past three days. And we

think that’s a violation of the rule and we think

it would be highly prejudicial to our case for

this witness to know what other witnesses have

testified to, particularly in view of the fact that

it was ODOT’s attorney in this case who

invoked the rule of sequestration. We have to

live by it; we think that they should likewise

have to honor the rule of sequestration.

THE COURT: Ms. Gordon, let me ask

you this. Is there anything at all about what

you have heard, either from your husband or

anyone else in the last three days since the trial

started, that is going to change, color, or in any

way affect your testimony that you’re going to

give?

JAN GORDON: No, sir.

A -24

THE COURT: Well, I don’t find

anything that’s violative of the rule. It is a

discretionary thing so I think I should overrule

your request, Mr. Levy.

MR. LEVY: Thank you, Your Honor.

Page 544, Line 19 through Page 545, Line 2

MR. GRAY: Your Honor, at

this time we’d like to tender Mrs. Gordon as an

expert in market trends with regard to land uses

in southeast Tulsa.

THE COURT: Very well.

MR. LEVY: May I inquire, Your

Honor?

THE COURT: Well, let’s save it for

cross, Mr. Levy.

MR. LEVY: All right.

THE COURT: Go ahead.

Page 553, Lines 5 - 25.

Q. Did you draw any conclusion as to a highest

and best land use for the D-Landco property

based on your survey of this study area?

A. Yes, sir.

And what can you tell the ladies and gentlemen

of the jury about that?

A. What this particular thing tells me is that based

on the history of land uses there, that the

©

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—

Ce a

>

Q.

A -25

highest and best use of the D-Landco property

would be single-family residential.

Would there ever. been any potential for

commercial anywhere on the D-Landco

property? In your opinion?

Yes,\ sir.

And where would that be located?

The corner of 81st and Garnett would probably

be suitable at some point in time, but it needs to

be built up a little more before some -- like a

convenience store requires 3,000 rooftops in a

square mile radius, that would be their normal

criteria to -- a radius isn’t square, sorry. But in

a one-mile radius in order to say that that would

be a spot that they would use.

Go ahead and have a seat, Mrs. Gordon.

TESTIMONY OF MR. RUSTY RICHARDSON:

Page 610, Lines 18 - 23

Q.

What conclusion did you draw from your study

of the marketplace with regard to more intense

zonings developing single-family residential,

Mr. Richardson?

Well, the only true market right now is for

single-family. That is the highest and best use

in most cases in this vicinity. . . .

A -26

CERTIFICATE

STATE OF OKLAHOMA _)

) SS.:

COUNTY OF TULSA )

I, KATHIE SCHIERMEISTER, a Certified Shorthand

Reporter in and for the State of Oklahoma, do hereby certify

that the foregoing is a true and correct record of my notes

taken in Case No. CJ-90-958, heard on the 9th, 10th, 11th,

and 12th days of March 1992.

I further certify that I am not related to nor attorney for

either of said parties nor otherwise interested in said action.

WITNESS MY HAND AND SEAL this _14th_ day of

September, 1992.

s/Kathie Schiermeister

Kathie Schiermeister, CSR, CP-RPR, CM

Official District Reporter

Kathie Schiermeister

Oklahoma Certified Snortnand Reporter

Certificate No. 00351

A -27

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

STATE OF OKLAHOMA, EX REL.,

DEPARTMENT OF TRANSPORTATION,

Appellant,

vs.

D-LANDCO, INC., an Oklahoma

corporation; BARBARA LASH; and

THE TULSA COUNTY TREASURER

Appellee.

RESPONSE TO PETITION

IN ERROR AND PRELIMINARY

STATEMENT

A. OBJECTION TO APPEAL?

Should this appeal be dismissed at this time?

Yes X No

If your answer is yes, state the reasons briefly:

on A

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Exhibit "A" attached (not to exceed one 8-1/2" X 11"

double spaced page).

B.

IF OTHER THAN ENTIRE TRANSCRIPT IS

DESIGNATED BY APPELLANT, ESTIMATE

NUMBER OF ADDITIONAL PAGES NEEDED.

IS APPELLEE WILLING TO PARTICIPATE IN AN

ATTEMPTED SETTLEMENT OF THE APPEAL BY

PRE-DECISIONAL CONFERENCE UNDER 3.7 IF

OFFERED THE OPPORTUNITY?

a ________—~No

WOULD APPELLEE BE WILLING TO

ACCELERATE PROCEDURES FOR THIS APPEAL

UNDER SUPREME COURT RULE? (Fast track)

(See F(1), Petition in Error).

X Yes No

APPELLEE’S BRIEF STATEMENT AS_ TO

PROCEEDING.

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Exhibit "B" attached (not to exceed 8 1/2" double

spaced page).

If not agreeable, why not?

DATE: , 19

Verified by:

PICKARD, MILLER & GRAY

Co-counsel for the Plaintiff

Oklahoma Department of

Transportation

By:

Stephen P. Gray, OBA #3556

4870 South Lewis, Suite 200

Tulsa, Oklahoma 74105

(918) 747-9797

CATHY S. HOOD

Counsel for the Plaintiff,

Oklahoma Department of

Transportation

200 N.E. 21st Street

Oklahoma City, Oklahoma 73105

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G. AFFIDAVIT OF MAILING TO APPELLANT AND

DISTRICT COURT CLERK (TRIBUNAL) ON DATE

FILED IN SUPREME COURT

I hereby certify that a true and correct copy of the

above and foregoing Response was mailed this day of

, 1992, by depositing it in the U.S. Mails, postage

prepaid to:

Louis Levy

5314 S. Yale, Suite 310

Tulsa, Oklahoma 74135-6246

I further certify that a copy of the above and foregoing

Response was filed in the Office of the Court Clerk of Tulsa

County on the day of , 1992.

Stephen P. Gray

——————

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EXHIBIT "B"

On February 23, 1990 the Appellee (State of Oklahoma

ex rel. Department of Transportation) filed a Petition to

condemn 28.09 acres of land for the extension of the Mingo

Valley Expressway. A Commissioner’s Award of

$1,200,000.00 was assessed and both parties demanded a jury

trial. Depositions were taken of the plaintiff and the

defendant’s witnesses. The defendant’s witnesses testified to

two different highest and best use scenarios with regard to the

fair market value of the property prior to trial. Indeed, even

William Del Armstrong, president of D-Landco, at Page 19,

Line 18-20 of his deposition dated March 29, 1991 testified his

opinion of highest and best use was agricultural and then

changed his testimony to commercial at the time of trial. A

trial occurred March 9-12, 1992. The defendant presented the

testimony of seven witnesses and the plaintiff presented the

testimony of four witnesses. Nine members of a Tulsa County

jury returned a verdict of $708,220.00 in favor of the

Appellant. Whereupon Appellant appealed said jury verdict.

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IN THE DISTRICT COURT OF TULSA COUNTY

STATE OF OKLAHOMA

State of Oklahoma, ex rel.

Department of Transportation,

Plaintiff,

Case No. CJ-90-958

VS.

D-Landco Inc., an Oklahoma

corporation; Barbara Lash; and

the Tulsa County Treasurer,

— ae” eee er a = oe ee ~—7 — _ ——-

Defendants.

MINORITY REPORT OF COMMISSIONERS

COME NOW the undersigned Commissioners

appointed by the Judge of this Court to inspect the real

property hereinafter described and to consider the injury or

damages which the said defendants as above named as the

owners thereof have sustained and may sustain by reason of

the taking of said property. Said taking is in fee simple,

unless specified otherwise in the legal descriptions(s) attached

hereto in which case the quality of title or interest to be

acquired herein shall be as stated in such legal description(s),

including airspace but excluding mineral interests and

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including the right to use and remove any and all road-building

materials. The appropriation is for public purposes by the

Department of Transportation of the State of Oklahoma. We,

the undersigned, respectfully submit the following Report, to-

wit:

The undersigned Commissioners were and are

disinterested free holders of Tulsa County, Oklahoma. We are

not interested in any like question. On the _23_ day of _April

_ 1990, said Commissioners took the oath prescribed on

Exhibit "A", attached hereto and made a part hereof.

We further report that it is necessary for the Plaintiff,

Department of Transportation, to acquire said property. It is

necessary to include airspace but exclude mineral interests. It

is also necessary to include the right to use and remove any

and all road-building materials. Said necessity is for public

purposes of a State Transportation System and facilities

necessary and incidental thereto. Title to said described

property must be taken by said Plaintiff for said purposes.

We further report that we have considered the injury

which the defendants, as the owners of the property described,

have sustained and may sustain by reason of the taking of said

property by the Department of Transportation of the State of

Oklahoma. We have considered the value of the land or rights

or interest therein taken excluding any mineral interest other

than as is set forth in the Petition. We have further considered

the amount of injury and damages done to the remainder of the

real estate, either directly or indirectly, by reason of said

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taking. We do hereby assess the compensation and damages

from all causes due said owners by reason of such taking of

the described premises and 1n accordance with the Instructions

to Commissioners, we find:

Before Value of entire property $2,569,780

LESS the

After Value of remaining property $1,964,160

ESTIMATE OF JUST

COMPENSATION $_ 605,620

IN WITNESS WHEREOF,we have hereunto set our

hands on this 25 day of May , 1990.

COMMISSIONERS:

s/John Story

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10917(02)

Parcel 168 & 168.1

27-31-90

A strip, tract or parcel of land lying in and being a part of the

NE4, Section 18, T 18 N, R 14 E, Tulsa County, Oklahoma,

and more particularly described as follows:

Beginning at the Southwest corner of said NE%; thence

Easterly along the South line of said NE% a distance of

438.98 feet: thence N 11°23’21" W a distance of 157.91 feet;

thence N 02°16’48" W a distance of 900.00 feet; thence N

02°29°01" Ea distance of 301.04 feet; thence N 02°16’48" W

a distance of 300.00 feet; thence N 11°45’22" E a distance of

309.23 feet: thence N 06°33’43" E a distance of 455.41 feet,

thence N 34°06'16" E a distance of 181.91 fect; thence

Easterly on a line parallel to the North line of said NE% a

distance of 750.00 feet; thence N 0°55’31" W a distance of

30.00 feet: thence Easterly on a line parallel to the North line

of said NE% a distance of 600.00 feet; thence N 0°55’31" W

a distance of 50.00 feet to the North line of said NE%; thence

Westerly along said North line a distance of 2000.00 feet to

the Northwest corner of said NE; thence Southerly along the

West line of said NE% a distance of 2638.10 feet to the point

of beginning.

The above described strip, tract or parcel of land contains

28.09 acres more or less of new right-of-way, the remaining

area included in the above description being right-of-way

occupied by the present roadway together with all abutters

rights, including all rights to access from the remaining

EXHIBIT __A

eee recent

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portion of defendant land onto the LIMITED ACCESS

HIGHWAY to be constructed on the above described property,

except that defendant_, heirs, successors or assigns,

shall have the right of access to the Section Line Road, along

the North side of the above described property, beginning at

a point on the North line of the NE% a distance of 800.00 feet

East of the Northwest corner of said NE% and extending East.

All bearings contained in this description are grid bearings

derived from the USC&GS Oklahoma plane coordinate system

and are not astronomical.

NOTE!! EXISTING FENCE IN THE TAKE AREA IS NOT

TO BE CONSIDERED AS A VALUE FACTOR BECAUSE

A NEW REPLACEMENT FENCE WILL BE INSTALLED

BY THE STATE DURING CONSTRUCTION AT NO COST

TO THE LANDOWNER.

Also: A temporary easement for the purpose of opening a

stream channel on the following described tract:

A strip, tract or parcel of land lying in and being a part of the

NE, Section 18, T 18 N, R 14 E, Tulsa County, Oklahoma,

and more particularly described as follows:

Beginning at a point on the permanent South right-of-way line

of the Creek Turnpike a distance of 1139.79 feet West and

68.38 feet South of the Northeast corner of said NE%4; thence

Westerly along said permanent South right-of-way line a

distance of 100.00 feet; thence S 0°55’31" E a distance of

30.00 feet; thence S 89°04’29" W a distance of 200.00 feet;

thence S 0°55’31" Ea distance of 120.00 feet; thence Easterly

———

——$

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on a line parallel to and 200.00 feet South of the North line of

said NE% a distance of 300.00 feet; thence N 0°55’°31" Wa

distance of 150.00 feet to the point of beginning.

Containing 0.90 acres more or less.

All bearings contained in this description are grid bearings

derived from the USC&GS Oklahoma plane coordinate system

and are not astronomical.

This temporary easement will automatically expire at the

completion of construction upon this highway project.

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