12/30/2007

Motion to stay eminent domain case denied: Oklahoma State University Daily O'Collegian, 11/5/07

By Michele Kraak

A Payne County [OK] judge denied a motion for stay pending an appeal in the ongoing Board of Regents and McCloskey Brothers’ eminent domain case Thursday.

District Judge Donald Worthington ruled earlier this year that OSU was entitled to the brothers’ property, which would be used in the university’s Athletic Village plan. The McCloskey Brothers’ attorney filed a motion for stay pending appeal so OSU would not be able to do anything with the property until the case has been settled. Harlan Hentges said in the motion that the potential harm to the brothers was irreparable because OSU intends to destroy the property.

Worthington refused to issue the stay, saying he didn’t think the court had the authority to issue it. In July, he ruled OSU could take the property using eminent domain for $84,000.

After the hearing, Hentges filed an appeal to the Oklahoma Supreme Court. No date has been set as of now.

Plans for the Athletic Village began about two years ago, and the two sides have debated whether OSU has the right to take the property.

In November 2005, OSU announced its Campus Master Plan, which included plans for an athletic village north of Boone Pickens Stadium. The university began buying property, forcing many students and faculty members to move. The original plan was to have all of the property acquired by July 2006.

The McCloskey brothers’ house is the last of 87 property units OSU wanted to acquire for the village. Hentges said it comes down to being right and being wrong.

“The McCloskey brothers had bought a house just a couple of months before the announcement (of OSU’s plan), and they didn’t think it ought to be done that way,” Hentges said. “They would not agree to a price on this house, so the Board of Regents ultimately decided to try to condemn the house.”

One of Oklahoma’s statutes says universities can acquire property through condemnation only in certain instances. Hentges said parts of the athletic village are going to be used for a hotel and a convention center, which is not within their rights.

“They didn’t prove that they were taking it for either a stadium or a field house, which are the only things that come close,” Hentges said.

Randall Elliot, who is representing the Board of Regents, could not be reached for comment.

Hentges said the most obvious argument against the Regents is that they are not qualified to be regents under the Oklahoma Constitution. Nine regents serve on the board, including a president. The governor appoints the eight other regents. The constitution says a majority of the eight regents the governor appoints must be farmers, which means they must earn a majority of their income through farming. Hentges said none of the regents qualifies as a farmer.

“The regents aren’t qualified to be regents,” Hentges said. “The Board of Regents we have is not the Board of Regents provided by the Oklahoma Constitution, and the way they’ve used their authority is not valid.”

The Board of Regents’ response to the motion for stay notes the Oklahoma Supreme Court has ruled a landowner is not allowed to stay in an appeal of a condemnation action. Worthington followed the Supreme Court’s precedent in his ruling Thursday, but Hentges said he thinks the ruling should be overturned.

“You and I could go out and file a lawsuit and say we’re the county commissioners, or we’re whoever we want to say we are, and we have the right of eminent domain,” Hentges said. “If the landowner doesn’t have standing to challenge that, that’s obviously a problem.”


Oklahoma State University Daily O'Collegian: http://ocolly.com