POSTED ON OCTOBER 17, 2007:
Over waters shallowed by defeat of river development package, rival builders still vie for South Tulsa span
While the latest controversy-of-the-season has been debated and decided by a popular vote in a comparatively quick-paced manner, another question related to development on the Arkansas River by combined public and private interests remains unanswered. The ongoing South Tulsa Bridge Saga of the past few years still hovers in limbo while the state Supreme Court decides which corner the story will turn next.
While "river yes" tax plan promoters, as well as the true believers in river development might still be glum about the outcome of the recent election, in truth, developers were eyeing spots to set up shop along its banks long before George Kaiser and company came along with their proposal. And businesses are still bound to set up there in the future in spite of the fact Tulsa County voters told Kaiser and Co. "Thanks, but no thanks for the $117 million."
(See OpEd, page 6, Letters, page 8 and City, page ?? for more on what's next.)
That likelihood of development "is just one more reason--when and if the bridge is built--for it to connect on Riverside Drive instead of Yale," south Tulsa's District 8 City Councilor Bill Christiansen told UTW.
The councilor has in recent months championed the cause of his constituents who make up the membership of the South Tulsa Citizens Coalition.
They oppose the plans of Infrastructure Ventures, Inc. to build a privately-operated toll bridge connecting Jenks to south Tulsa at Yale Ave. near 121st St., contending that, if such a bridge is built, it should connect to Tulsa on Riverside instead.
But location is hardly the only, or most volatile, point of conflict between the interested parties.
Michael Covey, spokesman for the STCC, is one of many who don't think IVI has any business building bridges in the first place.
"They're basically trying to ram a private toll bridge down Tulsa's throat with no input from the public," he told UTW.
Naturally, IVI president and CEO Bill Bacon disagrees.
"There needs to be one there. We gave the opportunity for the state, municipalities and the county to do it and no one stepped up. Now, we have a valid contract with ARBA (the Arkansas River Bridge Authority), and we're prepared to honor our commitment," he told UTW.
Except, the overarching issue now under consideration by the state Supreme Court is how "valid" that contract actually is.
Bacon takes encouragement, however, from the fact that the lawsuit is in the state's highest court because the STCC appealed two lower court decisions in favor of IVI.
"We've been challenged in court twice, and twice we've prevailed," he said.
While the toll bridge project wasn't formally announced until March 2004, the whole saga began five years ago when some longtime business partners and golf buddies gathered for lunch one day in south Tulsa.
One of their number arrived late, "cussing and cursing" about how he had to come north across the Arkansas River from Jenks, and that there was no expedient way to do so.
"That's when the fact came out that a bridge there had been on a long-range transportation plan since the 1960s," recounted Bacon, who was one of the businessmen/golfers.
Bacon already wore a couple hats as chairman and CEO of Cinnabar Service Company, a local land acquisition company.
He and some colleagues--Cinnabar President Bob Parmele, Executive Veep Terry Young, as well as local oil executive Howard Kelsey--decided that day to put on another hat--that of bridge-builders, and formed what would be Infrastructure Ventures, Inc. (IVI) for that purpose.
"We just wanted to do something to make a difference," Bacon said as their impetus for the project.
They next sought to determine if such a project was even economically feasible--if enough cars would cross the bridge for it to pay for itself as a toll road.
They soon discovered that the question wasn't a simple one to answer. It was literally a $60,000 question.
That's how much they discovered a preliminary feasibility study would cost to find the answer, so Bacon and company needed some assurances before they got in that deep.
"We didn't want to step out and spend $60,000 unless people wanted the bridge," he said.
So, they approached then-Tulsa County Commissioner Bob Dick and told him what they had in mind and asked if a bridge connecting Jenks to south Tulsa would be in the public interest.
As Bacon recounts, Dick's answer was an emphatic "yes."
So, he told the commissioner, "If we spend the money to determine if it's feasible, we'd like the opportunity to build it," to which, Bacon said, Dick agreed.
The next step they took, he told UTW, was to hire a public relations firm to test the political waters in a larger pond by contacting 60 different elected officials, locally and statewide, to see what they thought of the idea.
"No one opposed it," Bacon said.
So, they commissioned the study, the results of which were "extraordinarily positive," he said.
Following that initial $60,000 investment, the principals of IVI continued to invest time and money in follow-up studies and private meetings with County Commissioners and other elected officials.
The results of those meetings was an agreement with County officials that IVI would build a four-lane, 3,200-foot-long bridge across the river, connecting in Jenks on Yale Place near 131st Ave. and in Tulsa on Yale Ave. near 121st St.
Bacon said the bridge itself would cost $20 million to build, and the approaches connecting the two ends to the streets of Jenks and Tulsa would cost $25 million.
The bridge would be built by IVI but owned by Tulsa County, which would lease the bridge to IVI for a period of 75 years "so investors could get a return on their money," said Bacon.
Under that lease, IVI would take 80 percent of the toll revenues and give 20 percent to the County.
Shortly after Bacon and company got their bridge-building ball rolling, in 2003 state Sen. Scott Pruitt, R-Broken Arrow, introduced and passed Senate Bill 350, making straight the path for such a public/private project. It amended state statutes to allow transportation authorities to use combination public/private financing (in other words, bond debt and toll revenues) to pay for bridges like the one proposed by IVI.
Rep. Ron Peterson, R-Tulsa, who sponsored it in House, said at the time, "Everyone I've spoken with in the area recognizes the tremendous economic growth potential that's being held back because of access problems along those towns south of the river and the city of Tulsa."
He added that the next step would involve local governing boards agreeing on the toll bridge project, conducting a feasibility study, presenting information to the public and then putting the proposal to a vote of the people.
Some local governing boards agreed with it, and more feasibility studies would eventually follow, but the information wasn't officially announced to the public for another 10 months, and there was no discussion of a vote of the people.
Bacon, Dick, County Commissioner Randi Miller, Bixby Mayor Joe Williams, Vice Mayor Patty Ferree, Tulsa's then-Republican-now-Democrat state Sen. Nancy Riley, and Tulsa's still-Republican state Reps. Ron Peterson and Fred Perry (now Tulsa County Commissioner) publicly announced the project in March of 2004.
With the comparatively nimble operating capacity that sets a private corporation apart from a government agency, they estimated that the bridge would be built and open for business by October 2006.
What they apparently weren't counting on, though, was IVI having to submit to the same burden that typically slows a government agency: public accountability and the political process.
Whose Best Interests?
While the project was announced with a great deal of fanfare and enthusiasm, that didn't mean everyone was happy about the plans Bacon, Dick and the rest had made.
While IVI was buying up tracts of land to accommodate the bridge and moving forward with preparations, residents of south Tulsa were chewing on the proposed project and discovering that they didn't like how it tasted.
There were no public meetings held on the project until February of 2005, but Michael Covey, spokesman for the South Tulsa Citizens Coalition, told UTW that, at each one held, "Residents expressed strong disapproval to the bridge location and the way the bridge was being handled."
That handling, as Covey sees it, amounts to a handful of individuals deciding behind closed doors what they would impose on the community, and then holding public meetings as a "rubber stamp" for those plans.
He pointed to the minutes of that first public meeting held by Tulsa County officials regarding the Jenks toll bridge, which state: "Dick opened the discussion regarding the drafted Toll Bridge Agreement with IVI . . . the bridge had been discussed for two and a half years. IVI had met individually with each commissioner but the Board had not had an opportunity to collectively discuss the bridge and determine if it wanted to move forward."
The County soon determined that it did, in fact, want to move forward and in June formally entered into the 75-year agreement with IVI to build and then lease the bridge, with the understanding the County would be able to condemn, if necessary, land in the City of Tulsa in order to build it.
Meanwhile, some of those residents expressing "strong disapproval" moved forward with plans of their own and formed the "Move that Bridge" group, which would eventually become the South Tulsa Citizens Coalition.
And by "Move that Bridge," the group meant that it should connect at Riverside Drive in Tulsa, not on Yale Ave.
They argue that Yale couldn't accommodate the approximately 7,500-27,000 cars and trucks estimated to cross the bridge each day, and that the taxpayers of the City of Tulsa would get stuck with the significantly increased road-repair bill from IVI's private business venture.
Among numerous other concerns, they're also worried about south Tulsa residents possibly losing their homes to eminent domain.
Arguably, the chief point of contention, though, is the way the project came about.
Covey said the decisions to build the bridge, how to finance it and where to put it were all made with the interests of a few people in mind, without public input or approval.
Under the plan currently on the table, Covey said Bacon and company will be able to charge whatever tolls they want, because they won't be answerable to an electorate for how they operate the bridge.
If a bridge is needed, Covey and the STCC argue, it should be built by the cities of Tulsa and Jenks rather than a private corporation, and toll revenues should be split by the two cities in proportion to their populations, which means Tulsa would get the lion's share.
Bacon, though, argues that the bridge is needed, and that it will open up undeveloped land for development, as well as providing for public safety by making for quicker access across the river for emergency personnel.
And private financing through toll revenues is the only feasible way to get the bridge built, he insists.
"How can local governments justify building new bridges when they can't maintain the ones they have?" said Bacon.
He called the plan devised between IVI and the County an "outside the box" way of financing. "And if people don't find it convenient (to pay a toll), they don't have to use it. They can go around," added Bacon.
Covey, though, said that "outside the box" way of getting a bridge built by private interests would be the first of its kind in Oklahoma, and would set an unfortunate precedent for taking infrastructure out of the control of the public through government agencies, instead placing it in the hands of a few individuals.
Bacon, though, said such privately built bridges are hardly unprecedented, pointing to the first bridge across the Arkansas at Tulsa, the 11th St. Bridge built in the early 1900s by businessmen and Tulsa patriarchs J.D. Hagler and George T. Williamson.
The STCC challenged the IVI/Tulsa County agreement with a lawsuit in District Court in June 2005.
The day after the lawsuit was filed, the City of Tulsa's Board of Adjustment unanimously denied IVI's zoning variance to use land at 121st and Yale to stockpile dirt and building materials.
"STCC's presence and public opposition at this meeting were instrumental in the denial," said Covey.
About a week later, the Tulsa City Council approved a resolution opposing a private toll bridge.
Also, the Tulsa City Attorney issued a formal legal opinion that the County can't exercise eminent domain over city property.
In September of that year, the STCC gathered more than 5,000 signatures on a petition against the bridge deal, which included autographs from Mayor Bill LaFortune and City Councilors Bill Christiansen, Jack Henderson, Roscoe Turner, Randy Sullivan and Chris Medlock.
The plot thickened in November of that year, though, when the District Court judge upheld the agreement between IVI and Tulsa County, stating that the County has the right to enter into a toll bridge agreement with a private entity.
Taking A New Tack
Covey told UTW that the STCC then appealed the decision, prompting County Commissioners to approach the STCC, agreeing to step out of the agreement if the citizen's group dropped its lawsuit.
So, IVI entered into another 75-year agreement with the City of Jenks to build the bridge, prompting another lawsuit from the STCC.
The lawsuit alleged that Jenks violated the state constitution by granting IVI a franchise without submitting the issue to a vote of a people, and by granting IVI a franchise for a term 50 years longer than legally allowed.
Also, STCC contended in the lawsuit that Jenks can't incur a financial obligation past the current fiscal year without submitting the issue to a popular vote.
The lawsuit also contended that Jenks can't use eminent domain for land that isn't within its incorporated area, such as the land needed for the Tulsa-side of the bridge.
The STCC also alleged that the project should have been open to competitive bidding before entering an agreement with IVI.
"The City of Jenks gave us no alternative other than to file this lawsuit," said Covey.
"They basically signed the same bad deal that the County Commissioners signed nine months earlier. We simply don't understand why the City of Jenks supports giving over half a billion dollars in public funds to private investors instead of putting that money back into the community," he added.
While the lawsuit was pending, the City of Bixby joined the fray by joining with Jenks as the Arkansas River Bridge Authority (ARBA).
The new entity necessitated the old agreement be terminated and new one formed, now between ARBA and IVI.
It was essentially the same agreement but with "ARBA" appearing in the paperwork instead of "Jenks."
The name change made it necessary for STCC to refile their lawsuit, this time against ARBA.
As the District Court chewed on the lawsuit, Jenks annexed land on its side of the river for the bridge and ARBA and IVI made a few unsuccessful motions to dismiss the suit.
In March of this year, Tulsa City Councilor Christiansen held a press conference announcing an alternative plan in which the two cities would build the bridge, connecting on Tulsa's side at Riverside Drive, and on Jenks' side wherever they'd like, with toll revenues split in proportion to population.
Of course, what happens with that alternative plan depends on the outcome of the lawsuit, but Mayor Kathy Taylor echoed Christiansen's appeal in August when she sent a letter to Jenks Mayor Vic Vreeland and Bixby Mayor Ray Bowen, calling the existing arrangement "irresponsible" and asking them to accept the publicly built bridge plan.
Vreeland in turn responded with a letter to Taylor, calling her proposal "irresponsible" because it called for a 10-year delay in financing, which would make the project more expensive.
By that time, though, the District Court had in April ruled against STCC in its lawsuit on all but one count--the one regarding eminent domain.
Judge Gordon McAllister ruled that the court couldn't hear the arguments related to eminent domain until the City of Jenks tried to condemn land in the City of Tulsa.
A month later, the STCC filed an appeal with the Oklahoma Supreme Court.
"In a previous ruling, Judge David Peterson stated that the issues surrounding the bridge must be submitted to a vote of the people and now Judge McAllister--a trial judge, not an appellate judge--has reversed Judge Peterson's findings and rules in favor of the City of Jenks and IVI," said Covey.
In August, the court granted the defendants' motion for the Supreme Court to retain the STCC's appeal instead of handing it down to the state Court of Appeals, which means its decision will be final.
"If the Supreme Court finds in favor of STCC, the contract between the City of Jenks and IVI will be null and void and neither can appeal the ruling," explained Covey.
"On the other hand, if the Supreme Court finds in favor of the City of Jenks and IVI, then the contract will be upheld and STCC cannot appeal the ruling," he added.
Covey, who is an attorney (but not the attorney for STCC) estimated in August that the Supreme Court should render its decision within one year.
However, even if the court upholds IVI's contract with ARBA, Covey said he's confident that they still won't be able to move ahead with their plans.
"Any determination by the Supreme Court will not affect the rights of either the City of Tulsa or any individual landowner to contest the City of Jenks' attempted condemnation of their land," he said.
"Even if the Supreme Court rules for IVI, there's no way they can do it," concurred Christiansen.
Jenks' mayor doesn't see it that way.
While STCC's lawsuit against the pro-bridge camp awaits an outcome, Vreeland filed another lawsuit last week in Tulsa County District Court, this time against Taylor and Tulsa's Public Works Director Charles Hardt.
The suit is an effort to compel Taylor to sign an engineering services contract, which she's had in her possession since April 26, and would be the first step in the process for design work for the Tulsa-side of the controversial bridge.
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