Council mostly quiet on reasons for 'no' votes for requested development

Oct. 17—Following a 7-2 vote to decline a home builder's request to construct 147 homes between Bishop Creek and 12th Avenue S.E., city councilors are mostly silent on the reasons for their Tuesday night votes.

The council voted against the development from Shaz Investments owner Jalal Farzaneh after city staff repeatedly indicated the developer's request fully met the city's engineering criteria, zoning ordinances, codes and the 2025 Land Use for Urban Development guidelines. City Attorney Kathryn Walker urged the council to approve the request if they believed it met the criteria.

Ward 3 Kelly Lynn and Ward 5 Rarchar Tortorello were the lone votes in favor of the development.

Ward 4 Lee Hall said in an email to The Transcript Thursday it was obvious residents intended to sue if the council approved the request. The Eagle Cliff South homeowners association hired attorney David Burget. Shaz attorney Sean Rieger said following the council's decision, his client is well within his right to sue, but did not confirm if a lawsuit was imminent.

The Transcript reached out to councilors and Mayor Breea Clark by email to obtain the specific reasons for their "no" votes and the criteria the developer could have followed to obtain their approval, and to discover whether they realized their vote could leave the city open to lawsuit. Two responded.

Councilors who voted no did not cite the developer's specific code violation, nor did they suggest any guidance for approval.

"I regret that the two sides were not able to find common ground, and that the developer was not able to move forward with their project," Ward 8 councilor Matt Peacock said in an email. "However, when considering all of the factors that were presented, I had to use my best judgment and side with the residents on this matter. I hope that the citizens of Norman can understand how nuanced this topic was, and that this was much more than just simply being either for or against development."

Residents concerned

If Farzaneh sues, it will follow a May 2021 ruling against the city for a similar 2018 zoning lawsuit involving developer Fleske Holdings.

Walker in June said the Fleske case cost the city $160,000 in outside legal fees. The judge ruled the plaintiff in the case was within its right to develop a commercial office building according to the zoning laws of the city, and that the council's "arbitrary and capricious" decision cannot exceed the rights of a property owner.

Like Farzaneh, Fleske's request met with staff approval.

But unlike Fleske's request, the Planning Commission unanimously opposed Farzaneh's proposal. Residents in Eagle Cliff protested the commission meeting and later, more than 50 residents wrote letters of protest to the city.

Since the commission meeting and subsequent council meetings, Farzaneh agreed to install three stormwater detention ponds and withdrew "minor" variance requests that deviated from zoning ordinances, Rieger told the council.

Citing concerns Tuesday about poorly-installed or maintained erosion and stormwater prevention mechanisms, residents claimed Farzaneh should not be allowed to build more homes. Eroding soil caused steep drop offs and crevices near where children play, some said.

"If a kid falls in and dies, who's going to get sued?" homeowners association president Derek Rosendahl asked Tuesday night. "We're going to get sued."

Rosendahl presented images of erosion abutting backyards, concrete stormwater drains leading to drop offs and standing water in the woods where residents once explored what has become a "marsh," he said. Increased rainfall trends since the city's "outdated" 1996 estimate have increased stormwater, he added.

"I can tell you, as a climate scientist, the floodplain has moved," Rosendahl said. "We don't have $10 million dollars to go around and fix everything."

Others claimed the developer's request did not meet the design criteria to prevent harm to other property, especially concerning stormwater.

Alison Wilson, co-owner of Potts Family Farm, presented a video of water running from a drain off Osprey Drive toward her farm. Tim Johnson, a civil engineer who specializes in hydrology, proposed diverting stormwater to "a more defined creek" to avoid the Potts farm.

Members of the Potts farm said stormwater runoff has increased as development has moved in and caused crop loss. The farm is near Bishop Creek, which drains into a FEMA-defined floodplain on the farm. Following rainfall, Kevin Potts said his pond turns red with the silt running from Eagle Cliff. He submitted before and after photos of his pond.

City says otherwise

Staff reports and department heads told a different story.

Assistant City Attorney Rick Knighton told The Transcript 99.34% of stormwater flowing south from the proposed Eagle Cliff West addition "originates from properties" upstream. The Bishop Creek watershed begins from Robinson Street, where it picks up runoff from Griffin Memorial, part of the University of Oklahoma, commercial development and the National Weather Center, to name a few, he said.

The city's 2009 Stormwater Master Plan shows stormwater prevention projects worth $11.9 million are forecast in the Bishop Creek watershed alone, Knighton noted.

With the use of detention ponds at Eagle Cliff West, the rate of stormwater flow into the watershed will not increase after development, Knighton said.

As for maintenance of existing stormwater and erosion controls at Eagle Cliff, Knighton said the responsibility falls to the homeowner association.

Norman Public Works Director Shawn O'Leary said the city is forced to consider rainfall trends from 1996 because regulations must be based on published data. The stormwater master plan is considered current until "at least" 2029, he said, when minor updates would be necessary.

While O'Leary admitted the city's subdivision regulations and its 2025 Land Use Plan need to be updated, "both of those documents are still very valid and effective for consideration of most subdivision developments in Norman."

Rieger said Wednesday he does not know what to tell clients who want to build in Norman if the council will not honor its own ordinances. He noted the council accepted similar requests from Shaz two years ago.

"If the City [Council] will not allow the property to be used and engineered in accordance with the City's adopted plans, policies and codes, then what is a property owner to do? What different plans are we to follow? What different engineering standards are we to use?" he said.

While Ward 7 Stephen Holman did not respond to The Transcript's request for comment, he said in a post to his Facebook page he voted to protect residents.

"On Tuesday night I voted to protect the interests of a neighborhood and a longtime local family farm in my Ward over that of a private development," he wrote. "To be clear, I was elected by the people, not a corporation. This decision was likely going to lead to a lawsuit regardless of the outcome so I decided to come down on the side of the people based on the totality of evidence and circumstances presented."

Hall said it was clear the homeowner association intended to sue the city if the council approved the project, but did not answer The Transcript's other questions.

Mindy Wood covers City Hall news and notable court cases for The Transcript. Reach her at mwood@normantranscript.com or 405-416-4420.