Does the turnpike authority have an unfair advantage over homeowners? This family fought and won

Steve Lackmeyer, The Oklahoman
·8 min read
Samantha Brewer and attorney Nick Atwood stand near where Brewer's 3,600-square-foot home once sat before it was taken by eminent domain to make way for the Kickapoo Turnpike.
Samantha Brewer and attorney Nick Atwood stand near where Brewer's 3,600-square-foot home once sat before it was taken by eminent domain to make way for the Kickapoo Turnpike.

Samantha and Wes Brewer never considered the dream home they built in 2002 would be replaced by a turnpike.

The driveway that once passed a pond, windmill and manicured lawn remains intact. The drive leads nowhere now, ending just short of the Kickapoo Turnpike — and exactly where the Brewers' stately 3,600-square-foot home once stood.

The property is now split by the turnpike.

“My husband and I started with plans, we drew them up, and we wanted to stay here forever,” Samantha Brewer said recently. “We had handicap-accessible doors, custom woodwork, geothermal heated floors. It was a home where we could grow old together.”

The Brewers did something most targeted homeowners can’t: They fought back when the Oklahoma Turnpike Authority used eminent domain to seize their home.

The Brewers won big. But the ordeal they endured is held up as evidence by homeowners now fighting against proposed ACCESS Oklahoma toll roads that the turnpike authority has an unfair advantage.

The Brewers’ attorney, Nick Atwood, warned the couple the odds were high against those who challenge the turnpike authority when it uses eminent domain. It’s advice he provides all of his clients.

Wes and Samantha thought they were building the home they would die in when they custom designed and constructed their 3,600-square-foot house in 2001. The home was acquired through eminent domain and destroyed by the Oklahoma Turnpike Authority in 2018.
Wes and Samantha thought they were building the home they would die in when they custom designed and constructed their 3,600-square-foot house in 2001. The home was acquired through eminent domain and destroyed by the Oklahoma Turnpike Authority in 2018.

But after a six-year battle with the Oklahoma Turnpike Authority, the Brewers recently walked away with a jury award of $2.9 million that surprised both sides. The judgment was $1 million more than the value assigned by the Brewers’ appraiser and more than $2 million higher than the lowest value of $826,000 claimed by the turnpike authority’s appraisers during the trial.

More: Two Oklahoma turnpikes being added to US interstate network

It was a win for the Brewers, who like hundreds of other homeowners tried to block the turnpike authority from condemning their property in an ongoing expansion of the state’s toll road network.

“I was warned by the OTA, the people who came out for negotiations, and they told me, ‘Don’t fight this. You’ll come out on the wrong side.’ They were not right,” Brewer said. “I was never going to give up. There are a lot of other people who are going through the same thing and they can’t fight it. They don’t have the means to fight it.”

Those still fighting the turnpike authority say the Brewers’ ordeal, which included living for years in an older 1,200-square-foot rental home, is proof of what they say is an unfair process that gives toll road engineers the upper hand.

“It’s a nightmare,” Brewer said. “I didn’t really understand the full effect it was going to take on us emotionally. You live in your home, you’re on your property every day. And then it seems like it never ends.”

The turnpike authority boasts that negotiated settlements are struck with 95% of property owners. But Amy Cerato, president of Oklahomans for Responsible Transportation, responds the Brewers' verdict is a rare win that belies why 95% of homeowners end up negotiating a buyout.

Exclusive: Oklahoma lawmaker was paid $100K over appraisal for home in turnpike expansion route

“The majority of citizens don’t have the means to take the OTA through a lengthy and expensive court process to force the OTA to pay a fair price,” Cerato said. “They’re negotiating under duress.”

Lisa Shearer-Salim, director of communications at the turnpike authority, said the OTA’s negotiations for property along the Kickapoo Turnpike tells a different story.

"To put the Kickapoo Turnpike eminent domain in context, out of 300 parcels of property, 31 parcels moved to condemnation cases, some of which were to clear a clouded title. They were not all a value dispute. OTA negotiates in good faith with property owners starting at the fair market value and often going beyond that amount.”

Brewer hopes lawmakers will delve into the growth of the state’s toll roads network and how the turnpike authority uses eminent domain to seize homes.

“There has to be some changes,” Brewer said. “Homeowners need more rights.”

About 350 people, most of whom were residents of far eastern Oklahoma County, gathered March 16, 2016, on the south side of the state Capitol to express opposition to the Oklahoma Turnpike Authority's plans to acquire their homes to build the Kickapoo Turnpike.
About 350 people, most of whom were residents of far eastern Oklahoma County, gathered March 16, 2016, on the south side of the state Capitol to express opposition to the Oklahoma Turnpike Authority's plans to acquire their homes to build the Kickapoo Turnpike.

Turnpike officials say they may appeal verdict

The Oklahoma Turnpike Authority has been relentless in its expansion over the past 20 years. The 21-mile Kickapoo Turnpike was part of the $1.1 billion Driving Forward expansion that began in 2015.

Residents in eastern Oklahoma County fought the Kickapoo Turnpike just as Norman-area residents have sought to prevent eminent domain from being used to acquire their homes for more new toll roads planned as part of the $5 billion ACCESS Oklahoma program.

More: Exclusive: Oklahoma lawmaker was paid $100K over appraisal for home in turnpike expansion route

Shearer-Salim said the agency acquired about 900 properties under Driving Forward and that “only a few acquisitions” ended up being condemned through eminent domain.

“Even fewer went to a jury trial,” Shearer-Salim said. “We recognize that property ownership is a fundamental right. Taking a property through eminent domain is an emotional and difficult process. This is why OTA does all that it can to work with property owners to alleviate the burdens this process can bring.”

Brewer said she found out about the turnpike project via a Facebook post and then went to an informational meeting where she learned she would be losing her home.

The Brewers chose to fight back when the turnpike authority offered to buy their property for $1.3 million. An independent, court-appointed panel of commissioners then recommended an award of $1.1 million. Once the trial started, an appraiser hired as an expert for the OTA dropped the value of the home and property being taken to $826,000.

Shearer-Salim said that while the appraisal was dropped to $826,000 during the trial, the turnpike authority's final offer remained at $1.5 million.

The Brewers’ appraiser, meanwhile, valued the property at $1.9 million.

Wes and Samantha Brewer's custom-designed, 3,600-square-foot house, shown in 2001, was acquired through eminent domain and destroyed by the Oklahoma Turnpike Authority in 2018.
Wes and Samantha Brewer's custom-designed, 3,600-square-foot house, shown in 2001, was acquired through eminent domain and destroyed by the Oklahoma Turnpike Authority in 2018.

“The dollar amount ($826,000) was stated as part of an expert opinion during the court trial and it was that person’s opinion,” Shearer-Salim said. “That was never an amount offered by OTA to the property owners.”

During the trial, it was Samantha Brewer who argued her home and property was worth more than what was cited by appraisers for both sides. In her belief, the property was worth $2.98 million.

Atwood, the Brewer's attorney, says the $826,000 was the figure emphasized by the turnpike authority at the trial.

“The $1.5 million was before litigation,” Atwood said. “My clients rejected that figure. At no point during the trial was that figure ever put back on the table.”

Brewer said the family spent thousands moving to the smaller rental home along NE 23 and an undisclosed amount on legal costs.

The $2.9 million jury verdict is likely to be followed by a hearing this summer on a request by Brewer to recover litigation costs, including payments to lawyers and experts. Atwood said such recovery is allowed when a landowner is able to beat the commission award by 10%.

Brewer said when they moved they also lost the handicap accessibility they built in their home for her 78-year-old mother.

“It's nothing like what we had,” Brewer said. “We had to do some renovations to it because my mom couldn’t get in and out of the bathtub.”

A driveway leads to where the Brewers' home once stood near NE 10 and Luther Road.
A driveway leads to where the Brewers' home once stood near NE 10 and Luther Road.

Legal fight between Brewers, OTA may not be over

The turnpike authority built a drive from NE 10 to access the property west of the toll road, but the two sides disagree over whether it gave the drive or use of it to the Brewers.

“We don’t have access to it,” Brewer said. “It's landlocked. We still have a bulldozer sitting over there that we can’t move.”

Brewer said the turnpike officials were less than helpful in addressing the access issue, and instead advised the couple to “go to a neighborly neighbor to get access.”

Both sides provided The Oklahoman with maps and documents they argue does or does not show provided access.

“When OTA acquires private property for its public turnpike projects, it is obligated to ensure and/or restore access rights to a property owner’s remaining property,” Shearer-Salim said. “OTA cannot leave a property owner ‘landlocked’ without access to their property.”

Atwood argues the turnpike authority never fully granted the deed to the access drive and that the agency retained control.

“We do not have legal rights to that access road,” Atwood said. “Property records still show it’s owned by the OTA.”

The turnpike authority continues to insist the drive was deeded to the Brewers. Shearer-Salim also hinted the legal battle may not be over.

“The agency fundamentally disagrees with Mr. Atwood’s interpretation of the deed’s language as well as the assertion that the Brewers have no legal access to their property,” Shearer-Salim said. “OTA is evaluating whether to appeal the jury verdict. If OTA decides to proceed with an appeal, this will be one of the legal issues to be resolved.”

A pond, windmill and driveway are all that remain of Samantha Brewer's former home in Harrah.
A pond, windmill and driveway are all that remain of Samantha Brewer's former home in Harrah.

Atwood said he’s not surprised.

“The judge disagreed with the OTA’s opinion as well,” Atwood said. “If they appeal, they don’t have to put up a bond. But the amount awarded will accrue post-judgment interest. It will just get more expensive for the OTA. And if they lose the appeal, they would be subject to appeal fees as well.”

Samantha Brewer wants the fight to be over. Both sides agree the six-year wait was partially due to court delays that occurred during the COVID-19 pandemic. The turnpike authority's attorney, Eric Lair, said the litigation also was extended by appeals made by the Brewers over the taking of the property.

The wait may go even longer. If the OTA decides to appeal, Atwood said the typical wait can last one to two years.  Brewer just wants it all to be over so her family can go back home.

“We still have a driveway," Brewer said. "We have a beautiful pond. We want to come back. We just want to start rebuilding. We waited six years, and we just want to come home.”

Steve Lackmeyer started at The Oklahoman in 1990. He is an award-winning reporter, columnist and author who covers downtown Oklahoma City, urban development and economics for The Oklahoman. Contact him at slackmeyer@oklahoman.com. Please support his work and that of other Oklahoman journalists by purchasing a subscription today at subscribe.oklahoman.com. 

This article originally appeared on Oklahoman: Harrah couple laments 'nightmare' battle with OTA over destruction of home