Date: 05-17-2013

Case Style: OKC Town Center, LLC v. The City of Oklahoma City

Case Number: CV-2013-311

Judge: Thomas E. Prince

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Paul E. LeFebvre and Dennis Box

Defendant's Attorney: Susan Randall for The City of Oklahoma City

Dustin R. Fredrick for Oklahoma Natural Gas Company

Description: 1. That Petitioner brings this action pursuant to 11 O.S. 2001. § 42-111 and seeks an Order from the Court foreclosing The City of Oklahoma City’s aosolute right to reopen a portion of that certain public right of way (the “Portion of Righi of Way to be Vacated”) described on Exhibit 1 and depicted on Exhibit 2, both attached hereto and made a part hereof.

2. That pursuant to 11 O.S.2011, § 42-l13.C, when any public way or easement is vacated the same shall revert to the owners of real estate adjacent to such public way or easement on each side in proportion to the frontage of the real estate.

3. That by means of that certain Special Warranty Deed dated October 4, 2012 and recorded in Book 12062, Page 1092, and that certain Warranty Deed dated June 18, 2012 and recorded in Book 11951, Page 1298, both in the office of the Oklahoma County Clerk, Petitioner is the record owner of the real estate located adjacent to and on both sides of the Portion of Right of Way to be Vacated, and the party to which the Portion of Right of Way to be Vacated shall revert upon the granting of an Order by the Court for the relief sought herein.

4. That Defendant, The City of Oklahoma City, is a municipal corporation; that Defendant Board of County Commissioners of Oklahoma County, is a body corporate and politic; that Defendants, Oklahoma Natural Gas Company, a division of ONEOK, Inc., Oklahoma Gas and Electric Company, an Oklahoma corporation, Southwestern Bell Telephone Company, a Missouri corporation, AT&T CORP., a New York carporation, and COXCOM, Inc., a Delaware corporation, are public service corporations, transmission and utility companies, or franchise holders having rights in the public ways and easements within The City of Oklahoma City, Oklahoma, and may claim some right of interest in the Portion of Right of Way to be Vacated.

5. That the City of Oklahoma City has closed the Portion of Right of Way to be Vacated to public use through passage of Ordinance No. 24,606, a copy of which, marked as Exhibit 3, is attached hereto and made a part hereof.

6. That The City of Oklahoma City has no present or future reason to reopen or use the Portion of Right of Way to be Vacated.

7. That Petitioner will give notice of its verified Petition to foreclase The City of Oklahoma City’s absolute right to reopen the Portion of Right of Way to be Vacated by:

a. Service of summons, delivery of a copy of the verifitd Petition, and delivery of a copy of a notice of hearing to be published as provided in 11 0.S.2011, § 42-112 to The City of Oklahoma City and the Board of County Commissioners of Oklahoma County; and

b. Service of Summons, delivery of a copy of the verificd Petition, and delivery of a copy of a notice of hearing to be published as provided iii 11 O.S. 2011, § 42-112 to all public service corporations, transmission and utility companies, and franchise holders having rights in the Portion of Right of Way to be V&cated; and

c. Mailing by first class mail at least thirty (30) days beibre the hearing regarding this matter a copy of the verified Petition and a copy or the notice of hearing to be published as provided by 11 O.S, 2011, § 42-112 te all owners of record, as shown on the current year’s tax rolls in the office of the Oklahoma County Treasurer, of property abutting the Portion of Right of Way to be Vacated, and to all owners of record whose property is located within three hundred (300) feet of the Portion of Right of Way to be Vacated as shown by the current year’s tax rolls in the office of the Oklahoma County Treasurer, and to any person, firm or corporation not otherwise required to be notified which is known by the Petitioner to claim an interest or right in the Portion of Right of Way to be Vacated.

8. That Petitioner knows of no person, firm or corporation not otherwise required to be notified that claims an interest or rights in the Portion of Right of Way tc be Vacated.

9. That Petitioner will give notice to the public of the hearing on this matter in a newspaper of general circulation in Oklahoma County at least thirty (30) days prior to the hearing.

10. That the summons or publication notice will provide for an answer date not less than twenty (20) days after issuance of the summons or first publication notice.

11. That there is attached to this Petition a certificate of a bonded abstractor marked as Exhibit 4, listing the names and mailing addresses of all owners of record as shown by the current year’s tax rolls in the office of the Oklahoma County Treasurer, of property abutting the Portion of Right of Way to be Vacated, and such other owners of record whose property abuts the Portion of Right of Way to be Vacated within threc hundred (300) feet of the Portion of Right of Way to be Vacated.

WHEREFORE, Petitioner pray that upon hearing this Court make and enter a decree vacating and foreclosing the absolute right to reopen for all times and for all purposes the Portion of Right of Way to be Vacated, and further order the complete fee simple title to the Portion of Right of Way to be Vacated to revert to Petitioner.

The City of Oklahoma City appeared and answered as follows:

1. That The City presently has an existing 6” water main located in the right-ofway sought to be vacated.

2. That due to the presence of said City utilities, The City requests that an easement be reserved to The City for the existing main located in the right-of-way, together with the right of ingress and egress to maintain said water main.

WHEREFORE, Defendant prays that prior to judgment being granted for the Petitioner, that Petitioner reserve to The City an easement across the rights-of-way to be vacated for said water main purposes, together with the right of ingress and egress to maintain said utilities as described above.

Outcome: JOURNAL ENTRY OF JUDGMENT

THIS MATTER comes on for hearing before the Honorable Thomas E. Prince, Judge of the District Court of Oklahoma County, Oklahoma, on April 5, 2013, pursuant to a Notice of Hearing previously entered herein. Petitioner, OKC TOWN CENTER, L.L.C., an Oklahoma limited liability company, appeared by and through its counsel, Paul Lefebvre. Defendant, The City of Oklahoma City (the “City”) appeared by and through its counsel, Susan D. Randall. Defendant, Board of County Commissioners of Oklahoma County, appeared by and through its counsel, Gretchen Crawford. Defendant, Oklahoma Gas and Electric Company, appeared by and through its council, Stephanie G. Houle. Defendant, Oklahoma Natural Gas Company, a division of ONEOK, Inc., appeared by and through its counsel, Dustin R. Fredrick. Defendant, Southwestern Bell Telephone Company, a Missouri corporation, appeared by and through its counsel, John W. Gray, Jr. Defendant, AT&T Corp., a New York corporation, appeared by and through its counsel, John W. Gray, Jr. Defendant, COXCOM, INC., appeared by and through Michael Mitcham, Vice President of Cox Communications, Inc. No other party appeared.

The Court finds that this proceeding was duly instituted upon the filing of a verified Petition pursuant to 11 O.S.201 1, § 42-111, seeking an Order to foreclose the City’s absolute right to reopen a portion of that certain public right of way (the “Portion of Right of Way to be Vacated”) in Oklahoma City, Oklahoma County, Oklahoma, described on Exhibit 1 and depicted on Exhibit 2, both attached hereto and made a part hereof.

The Court further finds that Exhibit 1 provides a metes and bounds legal description of the Portion of Right of Way to be Vacated as required by 11 O.S.2011, § 42-107, and the Court further finds that literal compliance with that portion of 11 O.S.2011, § 42-107 requiring a “separate metes and bounds legal description of the area, if any, remaining platted” is impracticable in this instance, and such compliance is hereby waived as not being substantive to the decision of this Court in this matter, and because such compliance would not add clarity to the description of the area remaining platted beyond that provided by the relevant final plat recorded in the office of the Oklahoma County Clerk.

The Court further finds that the City closed the Portion of Right of Way to be Vacated by approval of Ordinance No. 24,606, and that Ordinance No. 24,606 is valid in all respects.

The Court further finds that except as otherwise provided herein the City has no present or future reason to reopen or use the Portion of Right of Way to be Vacated as public ways or easements.

The Court further finds that pursuant to 11 O.S.2011, § 42-113(C), when any public way or easement is vacated the same shall revert to the owners of real estate adjacent to such public way or easement on each side in proportion to the frontage of the real estate, except in cases where such public way or easement has been taken or appropriated to public use in a different proportion, in which case it shall revert to adjacent lots or real estate in proportion to which it was taken from them or dedicated.

The Court further finds that Petitioner is owner of the real property located on both sides of the Portion of Right of Way to be Vacated, and to whom the Portion of Right of Way to be Vacated shall revert upon the Court’s granting of the Order requested herein.

The Court further finds that service was obtained on all parties required by statute to be served, and that all notices were given as required by law, as more particularly appears from the affidavits on file herein, and the Court approves and confirms such notices.

The Court further finds that the City filed an Answer on March 13, 2013, stating that the City has a six inch (6”) water main currently located and in use within the Portion of Right of Way to be Vacated, and requested that any judgment herein reserve an easement for the City’s utility facilities currently located and in use within the Portion of Right of Way to be Vacated.

The Court further finds that the City has utility facilities currently located and in use within the Portion of Right of Way to be Vacated.

The Court further finds that the Board of County Commissioners of Oklahoma County filed an Answer on February 27, 2013, disclaiming any interest in the Portion of Right of Way to be Vacated except as to unpaid ad valorem taxes or special assessments including nuisance abatement taxes.

The Court further finds that Oklahoma Gas and Electric Company, filed its Answer on March 8, 2013, disclaiming any interest in the Portion of Right of Way to be Vacated.

The Court further finds that Oklahoma Natural Gas Company filed its Answer on March —, 2013, disclaiming any interest in the Portion of Right of Way to be Vacated.

The Court further finds that Southwestern Bell Telephone Company filed its Disclaimer on March 6, 2013, disclaiming any interest in the Portion of Right of Way to be Vacated.

The Court further finds that AT&T Corp. filed its Disclaimer on March 6, 2013, disclaiming any interest in the Portion of Right of Way to be Vacated. The Court further finds that COXCOM, INC., has failed to file an Answer and is in default.

The Court further finds that Petitioner’s Petition included the attachment of a Certificate of a bonded abstractor setting forth the names and addresses of all persons required to be notified pursuant to 11 0.S.2011, § 42-111 and 42-1 12. The Court further finds that on March 11, 2011, Petitioner mailed by first class mail a copy of the verified Petition and Notice of Hearing regarding this action to all owners of record of property abutting the Portion of Right of Way to be Vacated and to all other owners of record whose property is located within three hundred (300) feet of the Portion of Right of Way to be Vacated, as shown on the current year’s tax rolls in the office of the Oklahoma County Treasurer.

The Court further finds that Petitioner know of no person, firm or corporation not otherwise required to have been notified of this action who has or claims an interest or rights in the Portion of Right of Way to be Vacated.

The Court further finds that the Notice of Hearing was published in The Journal Record, a paper of general circulation in Oklahoma County, Oklahoma, on February 26, 2013, which such date of publication was more than thirty (30) days prior to the hearing by the Court regarding this matter.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by this Court that the City’s absolute right to reopen the Portion of Right of Way to be Vacated is hereby foreclosed and vacated, and title in fee simple to that portion of the Portion of Right of Way to be Vacated described in Exhibit A and depicted on Exhibit B shall revert to Petitioner.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by this Court that the City shall retain and continue to have a utility easement for the City’s six inch (6”) water main currently located and in use within the Portion of Right of Way to be Vacated, together with the right of ingress and egress to maintain the City’s utility facilities; provided, however, such utility easement reserved unto the City by this decree shall continue in full force and effect until a new utility easement accommodating the City’s utility facilities has been granted or dedicated to the City, and Petitioner, at its expense, has caused the City’s utility facilities to be relocated within such new easement. The relocation of the City’s utility facilities shall be in accordance with standard engineering practices approved by the City Engineer for the City. Upon the grant or dedication of such new utility easement, the City shall file a release of the utility easement reserved unto it by this decree.

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