Public Power, Private Gain: Oklahoma


 Oklahoma has seen several private condemnations in the last five years, including one that will transfer property from one private shopping mall to another. Perhaps alarmed by this type of activity, three bills were introduced in the Oklahoma legislature in 2001 that would provide greater protection for property owners threatened with condemnation. So far, however, none have passed. 



Legislative Actions


 The Oklahoma legislature is considering a number of different measures that, if passed, could substantially affect the state’s eminent domain laws. Senate Bill 1614 takes aim at pretextual takings where the “public purpose” is window dressing to mask the true private purpose behind the taking. The text of S.B. 1614 states that “[i]n no case shall private property be taken by eminent domain for purposes which appear on the face to be for a public use, but are false in fact.”572 Senate Bill 504 prescribes the pre-condemnation procedures that a condemning authority must undertake.573 House Bill 1893 provides that if the jury award in a condemnation proceeding exceeds by 10 percent the highest offer by the condemnor, then the court may reimburse the owner reasonable attorney fees, as set by the court.574 All of these bills are dormant, but S.B. 1614 and H.B. 1893 have been referred to committee.   



Private Use Condemnations



Four landowners are challenging an attempt by the Board of County Commissioners in Muskogee to condemn their land for right-of-way easements that benefit a private power plant. In September 2001, the Commissioners voted to condemn the properties so that Energetix LLC could build a pipeline linking the Arkansas River to the power plant it is constructing six miles away. The owners believe that the condemnations are illegal, because the only stated public purposes behind the Commissioners’ finding of “necessity” are that Energetix will pay taxes, employ workers and give to charities. Also, the completed plant will not sell electricity to the public, but only to other energy marketers. The trial court ruled against the owners.575 The case is on appeal to the Oklahoma Court of Appeals.  

Warr Acres

Town officials are seeking to condemn 30 acres of land through eminent domain, so that it may sell the site to a major retailer. The parcel is currently occupied by a number of businesses, the largest of which is the Westgate Shopping Center, home to several discount retail stores. In total, there are 18 affected properties. Salt Creek LLC, the owner of Westgate, filed a lawsuit in federal court against Warr Acres and the Warr Acres Redevelopment Trust Authority in September 2001, claiming that the Neighborhood Redevelopment Act, which allows Warr Acres to condemn businesses if the town determines that the area is blighted, violates state law. Warr Acres town officials believe that attracting another large retailer to town is necessary to prevent the Town from having to raise its sales tax.576 In June 2002, the district court refused to throw out the case, which is still pending.577  

*These numbers were compiled from news sources. Many cases go unreported, and news reports often do not specify the number of properties against which condemnations were filed or threatened.

572 S.B. 1614, 48th Leg. 2nd Sess. (Okla. 2002).

573 S.B. 504, 48th Leg. 1st Sess. (Okla. 2002).

574 H.B. 1893, 48th Leg. 1st Sess. (Okla. 2001).

575 See Muskogee County Board of Commissioners v. Lowery, No. CJ-01-2125, slip. op. at 1-3 (Muskogee County, Okla. Dist. Ct. Sept. 18, 2002).

576 Ben Scott, “Warr Acres Feels Tax Loss; Store Closing Impact Continues,” The Daily Oklahoman, Oct. 22, 2001, at Today II 1.

577 Gregory Potts, “Suit Against Warr Acres to Proceed,” The Daily Oklahoman, June 22, 2002, at Today II 1.