Another Eminent Domain Golf Course Story

[Terry Lavin]

Just saw this in the New York Times:


https://www.nytimes.com/2021/04/12/arts/design/octagon-earthworks-newark-ohio-golf-course-native-american.html?action=click&module=Top%20Stories&pgtype=Homepage

[Jason Thurman]

Thanks for the link. I've heard a bit about this ongoing story but this gives a lot more detail. Hard to know how to react - as a white male golfer, I can't help thinking that a club full of golfing members likely stewards the archaeology well. Then again, they wanted to build a clubhouse that cut into it a couple decades ago.


This seems like a great use case for the whole "village green" model in the UK, where a golf course can be both a golf course and a public park for non-golfers. But I'm not sure how that would work when all the golfing and non-golfing patrons are entitled Americans. I'm picturing a flash mob of picnic blankets scattered to block the 11th fairway before a cavalry of carts ramps over one of the mounds to try and chase down the picnickers and beat the hell out of them with 7 irons. That whole "good faith" part of eminent domain must be getting harder and harder to come by all the time.

[Dan_Callahan]

On a moral level, I would be far more comfortable with the taking of a golf course to preserve native american heritage than with a multi-billion dollar pharmaceutical company taking homes that had been in families for generations simply to build a new waterfront office building.

[Billsteele]

For those of you who are interested, the link below contains the Ohio Supreme Court's preview of the oral argument that was held today. It nicely summarizes the positions of both parties. There may be a video archive of the oral argument, but a cursory search this afternoon failed to find it.


http://www.courtnewsohio.gov/cases/previews/21/0413/0413.asp#OA200191

[David_Tepper]

Billsteele -

Thanks for the link to the court documents. In reading thru them I could not find a statement regarding when the current lease to the golf club expires. Please let me know if I am mistaken or if you know when the current lease expires.

DT
   

[Wayne_Kozun]

@David - the NYT story has that. 2078.
It is a very different case but Shaughnessy Golf & CC in Vancouver, BC is on land leased from an indigenous tribe.  This is considered one of the best courses in that part of Canada and has hosted the Canadian Open a few times in recent years.  The lease expires in 2033.

[Carl Johnson]

Billsteele -

Thanks for the link to the court documents. In reading thru them I could not find a statement regarding when the current lease to the golf club expires. Please let me know if I am mistaken or if you know when the current lease expires.

DT
   

According to the article in the New York Times the lease runs to 2078 . . . another 57 years if my calculator is correct.

[Joe_Tucholski]

This seems like a great use case for the whole "village green" model in the UK, where a golf course can be both a golf course and a public park for non-golfers. But I'm not sure how that would work when all the golfing and non-golfing patrons are entitled Americans.

Played a midwest GCA knockout match against Chris Sturges at Mound Builders (2018 doesn't seem that long ago).


I recall a public viewing area with parking and the ability to walk a path around some of the mounds.  Additionally there are multiple open houses where the course closes and the public can roam the entirety of the mounds.

[Steve Burrows]

I attended nearby Denison University and played Moundbuilders once. Even as an idiotic 20 year-old, something seemed wrong about trampling on such a landscape. 25 years later, I still think about it every now and then. Perhaps there was a time when utilizing this landscape as a golf course was a logical way to protect the mounds from destruction due to suburban development, but that time has past. I'm not sure if it's necessarily worthy of UNESCO designation, but this historic and culturally significant area definitely deserves to be treated better.

[corey miller]

It seems that there should be a compromise available though one would think any site that is UNESCO would be worth a lot more even under eminent domain. 

[Bruce Katona]

I always enjoy reading different opinions regarding eminent domain and the taking/compensation/use of land for different purposes.


While I personally believe this site should be preserved; I have no skin in this game. The path of least resistance for preservation IMHO is to let the land lease run its course and not renew it. That would give the state of Ohio 50 years to plan and set aside funds to properly preserve the site.   


Lets put the shoe on individual feet:  Lets say you personally owned a piece of land a third party determined had something of historic/environmental significance on it. You want to cut down a few trees, put an addition on the house or install a pool or detached garage on land you pay real estate tax on annually.  Someone says to you that even though zoning law permits you to make this property improvement you can't do it at all; not even if you find a separate location on your property because of the left footed spotted nahwhal has habitat on you land or perhaps folklore states indigenous people had a sacred stone on site.  Give this some thought.


I long ago recall meeting the woman who led the fight to save The Great Swamp in NJ from becoming an airport the size of JFK, as opposed to the mess we deal with flying in and out of Newark Liberty International.  The case she made to save The Great Swamp was masterful PR mixed with just enough science to make her case and her group prevailed to kill the airport. 


Her family had long owned a large tract of land in the Great Swamp watershed. She was getting on in years and wanted to break the property up into several building lots for estate planning purposes.  As part of the subdivision process in NJ, environmental review and mapping of protected wetlands and their required buffer areas is mandatory.  Given the "environmentally sensitive nature" of land in The Great Swamp 150 or 300' buffers around all wetlands was required by law.  Through some networking and little science, the buffers were reduced to 50' allowing more building lots to be approved. 

Rules are Rules, until you own the land and are impacted, then it's private property where the land owner knows best and wants what he/she determines to be the highest and best use.

[Mark Jackson]

For those interested, the video of the oral argument has now been posted.


http://ohiochannel.org/video/supreme-court-of-ohio-case-no-2020-0191-state-ex-rel-ohio-history-connection-v-moundbuilders-country-club-co


As an attorney in Ohio who has represented some public entities in takings cases, and provided legal guidance regarding property appropriation/eminent domain questions, the Moundbuilders litigation has been interesting to follow because it also involves a golf course I have played a few times. 


From experience, whenever a public entity brings up the thought that it may even consider an eminent domain or appropriation proceeding to acquire property, there will nearly always be backlash from a vocal portion of the community - even if the public entity believes that it has strong support for a planned project. Whenever a client inquires with me about these types of matters, I always also make sure they are aware that there will be public criticism if eminent domain is mentioned, which they may never have anticipated, because of the interference with an individual's rights relating to their real property.


If the Moundbuilders litigation ends up getting to the point of determining a value that must be paid by the Ohio History Connection to the club after the Ohio Supreme Court determines the threshold questions that currently are on appeal, it will be intriguing to see what a jury concludes how much a lease to operate a golf course that has about 57 years remaining is worth (or how much the parties ultimately are willing to settle). While the club does not actually own the property upon which the golf course sits, the 50+ years remaining on the club's lease for the club to use the property certainly has significant value.