The Enid News and Eagle, Enid, OK

February 11, 2013

Appeals court sides with city in Renaissance lawsuit

By James Neal, Staff Writer
Enid News & Eagle

ENID, Okla. — Oklahoma Court of Civil Appeals has upheld a Garfield County District Court ruling that dismissed a lawsuit filed by Enid developers Bob and Eli Berry against the city of Enid.

The Berrys filed the suit in May 2011, seeking injunctive relief against the city for using a construction manager at-risk contract model and not obtaining an approved site plan for Enid Renaissance Project.

In June 2011, Garfield County District Judge Paul Woodward issued a preliminary injunction preventing the city from using the construction manager at-risk contract for the project.

Woodward also required a surety bond of $200,000 be posted by the Berrys to protect the city against any potential damages that may have been sustained as a result of the issuance of the preliminary injunction.

The city officially terminated the construction manager at-risk method in October 2011 and moved to a bid-and-build construction delivery method. The injunction sought by the Berrys never officially went into effect because the required bond was not posted.

Woodward dismissed the Berrys’ lawsuit in October 2011, finding the conflicts in the case had been resolved.

The Berrys filed an appeal to the Court of Civil Appeals over the issue of the site plan for Renaissance construction.

The city countered it was exempt from requiring site approval for the project, citing an exemption in the city code which states the site plan approval process “shall not apply to ... new occupancies or existing structures in the C-4 central business district zone.”

The Court of Civil Appeals found in its Friday ruling the definition of “new occupancies” was broad enough to encompass the Renaissance project construction.

The Berrys’ suit also contended the city had failed to submit a site development plan to Metro Area Planning Commission before authorizing the project through its original contract with Flintco in 2011.

The court found in its judgment that the state statutes cited in the Berrys’ suit do not pertain to site plans, but require submission of “proposed plans” to MAPC “for a determination as to whether the project conforms to a comprehensive plan.”

The court noted the city of Enid submitted the Renaissance plan to MAPC, “which unanimously found the project conformed to the 2025 Enid Metropolitan Area Comprehensive Plan.”

The court also noted the city’s contract with Flintco, approved before a plan was submitted to MAPC, did not violate state statutes.

“Plaintiffs fail to explain how City could have submitted the project to MAPC for a determination as to whether it conformed to the comprehensive plan if no architectural or other construction materials had been prepared by Flintco and the other firms,” the court wrote in its judgment. “MAPC would have been forced to make a decision based upon speculative theories or abstract ideas.”

The court also noted that, as of the date of the 2011 summary judgment proceedings, “no building permit had been issued, no construction had commenced and no Notice to Proceed had been issued authorizing construction on the project.”

Bob Berry said he appreciated the court’s time in reviewing the lawsuit, but said he’s not done pursuing the matter.

Berry said despite the court’s ruling, he still believes the city has improperly exempted itself from rules that “everyone else must follow.”

“We respectfully don’t think the city can exempt themselves from having to submit site development plans,” Berry said. “We’ll be looking at this from a different angle. There are a lot of city projects going on out there, and I don’t think the city can treat themselves differently than they treat other people. We’ll take a look at this and how it applies to different projects.”

Berry said he may have lost out in the court’s ruling, but he still will pursue the same premise that compelled him to file the suit: “The city needs to follow its own rules, codes and charters.”

Berry said he is not opposed to Enid Renaissance Project, or any other city projects, but he wants the city to “follow the process.”

“When they follow the rules, I don’t care what they do, as long as they do it in an open fashion and follow the rules, or change the rules,” Berry said.

Berry still has an outstanding lawsuit against the city concerning parking and traffic flow for the Enid Event Center.

A March decision by the Board of Adjustment granted the city a special exemption from city ordinance concerning parking for the event center.

Berry filed an appeal, claiming the city did not meet the requirements for special exemption for parking requirements and did not conduct a traffic study. The appeal also states the city did not meet Americans With Disabilities Act requirements for parking.

Berry said he will continue to monitor the city’s public projects, regardless of how that lawsuit turns out.

“Every time the city doesn’t follow its own rules, this is going to come up,” Berry said. “This isn’t about one particular project.”