May 22, 2009

Honorable Tim Harris, District Attorney, District 14
Tulsa County Courthouse
500 S. Denver Ave., Suite 900
Tulsa, Oklahoma 74103-3832

Re: Opinion Request L-28

Dear District Attorney Harris:

The Attorney General's office acknowledges receipt of your request dated May 1, 2009 for an official Attorney General Opinion. This matter has been referred to me for response.

In light of the pending litigation in Tulsa County District Court relating to the "creation" phase of Tulsa Stadium Improvement District No. 1 and the need to address questions on the assessment process as soon as possible, I do not believe this inquiry should be dealt with in an official Opinion. Instead, I have prepared a memorandum summarizing my analysis of the questions raised, and submit it for your use. This is not an Official Attorney General Opinion.

In short, my conclusions are that failure of a land owner (either public or private) to timely protest in writing as to the creation ofthe improvement district or the overall benefits to be achieved by its creation, as provided in 11 O.S. §39-108, precludes the land owner from protesting at a later hearing pursuant to 11 O.S. §39-111 (relating to assessments) that the district should not have been formed, or that the particular parcel or tract of property should not have been included.

However, I also conclude that such failure of a land owner (public or private) to protest the creation of a district under 11 O.S. §39-108 does not preclude the land owner from properly protesting the amount of the assessment of a particular parcel at the hearing envisioned by 11 O.S.  §39-111. Assessments should be proportionate to benefits. Further relief may be sought in district court after this hearing is completed and an ordinance adopted approving an assessment roll.

Meanwhile, under terms of 11 O.S. §39-1 09 and 39-115, the City may determine to proceed with construction of the project approved in the 11 O.S. §39-108 "creation" hearing and, at its discretion, issue and use bonds to finance the project.

I trust this information will be useful in resolving the concerns of Tulsa County and the State.

Lynn C. Rogers
Assistant Attorney General