Understanding the convoluted Edmond ballot question

By Joe Tomlinson -Non-doc Monday, November 7, 2022

Edmond's Nov. 8, 2022, ballot question asks voters whether property located located north of Memorial Road and west of the West I-35 Frontage Road should retain multi-family zoning or not.

(Update: On Tuesday, Nov. 8, Edmond voters disapproved the ballot question, with 25,987 casting “No” and 11,458 casting “Yes” votes. The property in question will retain retail general commercial zoning.)

When Edmond voters hit the polls Tuesday, they will face a ballot question that asks whether property located north of Memorial Road and west of West I-35 Frontage Road should be rezoned to allow for the construction of a 301-unit apartment complex.

However, even if the question is approved and voters authorize the proper zoning for apartment construction, it is highly unlikely that a residential complex will be built there because the property owner has announced he is now pursuing a commercial development instead.

But that hasn’t stopped two of Edmond’s five city councilors from publicly pushing for a “Yes” vote on Tuesday.

“We’re doing it at the benefit of Edmond, Oklahoma,” said David Chapman, Ward 1 councilman. “And now, when we make that vote — when I go to the ballot — that’s what I’m going to vote for.”

Ward 2 Councilman Josh Moore agreed.

“What’s on the ballot specifically is the question — does multifamily belong on that land site, did it fit our comp plan, (and) were the two variances warranted — and our vote was ‘Yes,'” Moore said.

Moore and Chapman have written similar opinion pieces in local publications advocating for a “Yes” vote and framing the ballot question more as a philosophical referendum on the need for additional multifamily development in Edmond.

“People say that apartments will overcrowd our schools. (…) If we’re considering property tax revenue for our schools, a multi-million-dollar apartment project is a financial windfall for the district,” Moore wrote in Edmond Life and Leisure. “I felt like the facts supported the applicant’s request to rezone the property, and my position hasn’t changed that we need to grow all types of housing as Edmond continues to grow. A Yes vote on November 8th would confirm this decision.”

Despite the councilmen asking residents to vote in favor of the zoning change, property owner Frank Battle dropped the multi-project deal with Tulsa developer Case & Associates on April 27, 2022, a year after a group opposing the apartment complex filed a referendum petition with the city in April 2021. That petition turned into Tuesday’s ballot question, and the city is legally required to put it before voters even though Battle now has a deal with a commercial developer on the property and no longer wants the zoning to change.

“It looked to me like a vote of the people was going to go in the direction of not approving apartments,” Battle told the Edmond City Council at a July meeting. “So I had an opportunity to deal with someone that needed E-1 commercial (zoning).”

That means if Edmond residents vote “Yes” to approve the property for multifamily housing, Battle will likely reappear before the Edmond Planning Commission and City Council to request that the property’s zoning be changed to retail general commercial, so he can fulfill his contract.

It could take 60 to 70 days for Battle and the commercial developer to apply for rezoning and submit a site plan through the City Council and Planning Commission processes.

Battle said his deal with the commercial developer expires after Jan. 31, in case the ballot question is approved. That would give Battle and the developer of the property 83 days from Nov. 9 to apply for rezoning and submit a site plan with the city. Battle added that he would be willing to extend his agreement with the developer to give ample time to complete those processes.

Odd election required by law

The convoluted nature of the situation has been noted on social media, and it is likely to confuse many people as they prepare to vote Tuesday. When Edmond voters review their ballots, the zoning question will read:

Shall Ordinance No. 3832 rezoning certain property generally located north of Memorial Road and west of the West I-35 Frontage Road from A Single Family Dwelling District and E-1 Retail General Commercial to PUD Planned Unit Development which will contain two variances, and (301) multifamily apartments be approved?

Although Battle’s withdrawal of his apartment proposal means the question is functionally moot, Edmond officials were required to put it on the ballot, owing to state law. In July, the Edmond City Council discussed whether the city should pursue legal action in Oklahoma County District Court in an attempt to dismiss the question entirely. Ultimately, the question could not be avoided.

That leaves Battle in the unusual position of hoping the ballot question will be disapproved so that the property’s zoning will revert back to “retail general commercial” and allow his new project to move forward more quickly.

“That’s what I’ve been counting on — to try to be able to complete the contract,” Battle said.

Because Battle has the land under contract with a commercial developer, Scott Case, the son of Case & Associates founder Mike Case, said he does not anticipate his firm will be developing the apartment complex originally planned for the property.

“Yeah, that’s probably highly unlikely. We don’t currently have the site under contract any more,” Case said. “Unless something changes drastically, no, we don’t have any intention of developing the site.”

Citizen-led referendum petition spurred ballot question

Frank Battle, the manager of Expressway Development, LLC, speaks before the Edmond City Council on Monday, July 25, 2022. (Screenshot)

On April 12, 2021, the Edmond City Council voted 4-1 to approve the ordinance to rezone Battle’s property for a planned unit development (PUD) containing 301 apartments.

Chapman, Moore, then-Ward 4 Councilman Nick Massey and then-Mayor Dan O’Neil, voted “Yes” on the ordinance. Mayor Darrell Davis, who was then serving as the Ward 3 councilman, cast the lone “No” vote.

However, a group of homeowners filed a referendum petition against Battle’s rezoning and collected more than 3,000 signatures, which surpassed the required 25 percent of the city’s total voters who participated in the last mayoral election (about 10,900 voters). The group then submitted the referendum to the Edmond city clerk, triggering an election to uphold or reject the rezoning ordinance.

Attorney Todd McKinnis then filed a protest in Oklahoma County District Court on behalf of Case & Associates “regarding the manner in which some of the signatures were obtained,” Edmond City Attorney Stephen Murdock said. A hearing was held on Dec. 29, and District Court Judge Natalie Mai denied the protest.

Battle said he was not immediately aware of the litigation regarding his property.

“I didn’t find out until it was already something that was underway.” Battle said.

However, Battle’s apartment proposal was not the only multifamily project to face a referendum petition last year.

A separate mixed-use development slated to contain 276 apartments and commercial space was ultimately withdrawn after the developer, landowner and the City Council agreed to a public vote on whether the city should buy the 22-acre property abutting Hafer Park and dedicate it to the city’s park system.

More than 81 percent of Edmond voters approved a 12-month 0.25-cent sales tax for the land purchase, which nullified neighborhood residents’ referendum efforts.

Still, in 2021, that proposed apartment project and the multifamily project proposed for Battle’s property were moving through the City Council and Planning Commission at the same time.

“We were three miles away from that other location, but they chose to do referendum petitions on both projects at the same time,” Battle said. “We were like collateral damage from the intensity of negative opinion over apartments being built right next to Hafer Park, which we had no involvement in.”

Battle said the elongated process brought on by the referendum petition and ensuing litigation has been a financial drag.

“It was costing me $7,000 a month, and I’ve already incurred about $133,000 worth of delay that will have to be paid at closing,” Battle said.

Since he and Moore voted in favor of multifamily zoning on Battle’s property in April 2021, Chapman said it “wouldn’t make sense” for the councilmen vote “No” Tuesday.

“How can we say ‘No’ to that? We’ve already said ‘Yes,'” Chapman said. “How can we turn around now and say ‘No?'”

Chapman: ‘Still the right thing to build multifamily’

Legend V Apartments, located at 2133 E. 2nd St., completed in 2012, is the last apartment complex to be built in the city. (Joe Tomlinson)

While reviewing zoning requests, Moore said the Edmond City Council and Planning Commission only take into account whether the zoning “belongs” on the property in question according to the city’s comprehensive plan, not other outside factors.

“When we’re making zoning decisions or PUD decisions, it’s not in our scope to say, ‘Well, what if next week, they decide to contract with somebody else, or what if there is a referendum petition,'” Moore said. “That’s what the referendum petition was on, and that’s what the vote is for.”

Chapman said he and Moore — both developers — are often criticized for supporting developers’ interests. But this time, Chapman said those opposing Tuesday’s ballot question want the two councilmen to protect Battle.

“Now, they want us to look out for the developer. They want us to look out for Battle, like that would be OK for us to completely change our viewpoint and our strategy on Edmond for a developer,” Chapman said. “No, it’s still the right thing to build multifamily.”

Chapman and Moore have been vocal proponents for bringing more housing to Edmond. Throughout the year, the two have delivered a string of presentations in an effort to raise public awareness of what they call Edmond’s affordable housing crisis.

Both Chapman and Moore wrote recent commentaries regarding the ballot question in The Journal Record and the Edmond Life and Leisure, respectively, which spoke to the city’s housing needs.

Both councilmen wrote that the employers along I-35, such as Mercy, INTEGRIS, Walmart and Crest, would benefit from such multifamily housing. Moore noted in his piece that 6,000 new homes have been built in the city since 2012, when the last apartment complex — Legend V Apartments — was built.

Although Tuesday’s ballot question has become a proxy vote for those who support or oppose multifamily housing developments in Edmond, Moore said he wants Edmondites to consider whether multifamily zoning fits Battle’s property “on its own face and merits.”

If the ballot question is approved and Battle’s property is zoned for multifamily housing, Moore said he and the rest of the City Council would consider Battle’s presumed request to rezone his property back to general commercial the same way they considered his PUD request in April 2021.

“That is what we are elected to do,” Moore said.

(Correction: This article was updated at 8:49 a.m. Monday, Nov. 7, to correct a mistake regarding the date Battle dropped the multifamily project deal with Case & Associates.)