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RESOLUTION NO. R-1314-126: A RESOLUTION OF THE COUNCIL OF THE CITY OF NORMAN, OKLAHOMA, DECLARING THE NECESSITY FOR ACQUIRING CERTAIN REAL PROPERTY, MORE PARTICULARLY HEREINAFTER DESCRIBED, ALL WITHIN THE CITY OF NORMAN, COUNTY OF CLEVELAND, STATE OF OKLAHOMA, FOR THE PURPOSE OF THE LINDSEY STREET STORM WATER DRAINAGE PROJECT IN THE CITY OF NORMAN; DECLARING THE NECESSITY FOR ACQUIRING SAID PROPERTY FOR ROADWAY AND PURPOSES; AND DECLARING AN EMERGENCY.
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BACKGROUND: On August 28, 2012, the City of Norman voters approved a $42.5 million bond project that includes eight major transportation/storm water projects. These eight projects are anticipated to cost $89 million with federal funds paying over 50% of the costs. The projects include:
West Lindsey Street widening and storm water improvements
24th Avenue SE widening and new traffic signal
36th Avenue NW widening and 2 new traffic signals
12th Avenue SE widening and improved traffic signal at SH-9
Main Street Bridge replacement over Brookhaven Creek and storm water improvements
Alameda Street widening
Cedar Lane widening and new traffic signal
Franklin Road Bridge replacement over Little River
The second planned project is the Lindsey Street Widening and Storm Water Improvements Project with an estimated construction start date of September 2015. The City is currently working in partnership with the Oklahoma Department of Transportation (ODOT) to get the second phase of the drainage box that is part of the City’s Lindsey St. project included in the reconstruction of the I-35 and State Highway 9 interchange by ODOT. In order for the second phase of the drainage box to be incorporated into the plans for the Interchanges, right-of-way acquisition needs to be complete by July 1, 2014.
The Lindsey Street Drainage Box Project requires the acquisition of one (1) property and seven (7) easements from five (5) property owners.
DISCUSSION: The appraisals of the subject properties were conducted by an Oklahoma Department of Transportation (ODOT) Certified Appraiser. Following completion of the appraisal, Staff reviewed the appraisal to evaluate the appraisal in order to correct any deficiencies and to insure that the appraisals of the property are in order.
The basis of requiring an appraisal and a review appraisal is that it insures that the restrictions of the Fifth Amendment of the United States Constitution and the Constitution of the State of Oklahoma are met. The Fifth Amendment provides in part: “. . . nor shall private property be taken for public use without just compensation.” Further, the Constitution of the State of Oklahoma provides: “Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, . . .”
Finally, 11 O.S. § 22-104 provides that “every municipality shall have a right to: (3) exercise the right of eminent domain for any municipal purpose, . . .”
Section 22-105 provides: Private property may be taken for public use, or for the purpose of giving a right-of-way or other privilege for any necessary purpose, in the manner provided by law; but in every case the municipality shall make adequate compensation to the person or persons whose property shall be taken or injured thereby as provided by law.
By requiring the appraisal and a review of the appraisal, it helps insure that the offer to the property owner is adequate. The Courts have viewed “just compensation” as the fair market value of the property taken. “[F]air market value . . . means money which [the] purchaser willing but not obligated to buy property would pay to the owner willing but not obligated to sell it.” Grand River Dam Authority v. Bonford, 111 P.2d 182 (Okla. 1941).
The City of Norman, through its right-of-way agents, has been working with the property owners to address any concerns they might have. The written offer to the property owners were delivered by the City’s right-of-way agents, Pinnacle Consulting Management Group, Inc. in early March. Attempts have been made by both Pinnacle and City legal staff to negotiate a fair settlement for these parcels. All but two parcels have reached settlement. The two remaining parcels affected by Resolution No. R-1314-126 are labeled as number 3 and number 11 in the chart attached hereto as Attachment 1.
This Project is being conducted by the City in conjunction with the Federal Highway Administration (“FHWA”) and ODOT. The City has: (1) followed both federal and state regulations concerning the acquisition of private property for this public project; (2) provided the property owners property rights information as required by the regulations; (3) conducted appraisals and review appraisals as required by the regulations; (4) provided the property owners with all requested information with respect to this Project and their property; (5) representatives of the City and City Staff have been available at all times to discuss any issue with the property owners; and (6) requested information from the property owners that would assist City Staff in resolving the issue of acquiring these properties.
The City must complete property acquisition for this project by July 1 to comply with ODOT deadlines. Although Staff desires to settle the acquisition process with the property owners, it is necessary to take the next step and file for condemnation to preserve the timeline of completion by July 1, 2014. Filing condemnation does not mean that efforts toward settlement will cease. It will ensure however, that the property is acquired in a timely fashion.
RECOMMENDATION: Based upon the above and foregoing, it is the recommendation of the City Attorney’s Office that proposed Resolution No. R-1314-126 concerning the necessity of acquiring the tracts of property described in Attachment 1 to this memorandum and in the exhibits attached to the Resolution, and associated with the Lindsey Street Storm Water Drainage