NEWARK -- The Ohio Supreme Court announced Tuesday it will hear an appeal from Moundbuilders Country Club on lower court rulings allowing the Ohio History Connection to reclaim the golf course property by eminent domain.
The court voted 5-2 to hear the case, with Chief Justice Maureen O'Connor and Justice R. Patrick DeWine dissenting. Justice Patrick Fischer accepted the appeal only on the narrower issue of property appraisals.
Joe Fraley, attorney for Moundbuilders, said the club welcomes the opportunity to argue its case before the state's highest court.
"It is a fairly rare thing when they hear it, but I was cautiously optimistic this was a case they would hear," Fraley said. "Obviously, a majority of the justices decided to hear the case, and that's very positive news for Moundbuilders."
More: OHC offers Moundbuilders Country Club $1.6 M for lease amid Hopewell site legal battle
Fraley said it could be three to six months before the court hears arguments, and nine months to a year before a decision is announced.
Burt Logan, executive director and CEO of the Ohio History Connection, said, "Our guiding principles throughout this process have been to ensure full public access to Octagon Earthworks while also ensuring Moundbuilders Country Club receives just compensation for the value of the lease.
"We are unwavering in our belief that the Octagon Earthworks must be accessible to all. This position has been affirmed by the Licking County Court of Common Pleas and upheld by the Fifth District Court of Appeals. We look forward to making our case to the Ohio Supreme Court."
On. Jan. 29, the Ohio Fifth District Court of Appeals rejected a Moundbuilders appeal, affirming a May 10, 2019, decision of Licking County Common Pleas Court Judge David Branstool that OHC has the authority to acquire the lease at the Octagon Earthworks by eminent domain.
The Ohio History Connection, previously the Ohio Historical Society, has leased the property to Moundbuilders, where golf has been played since 1910. The OHC seeks to buy back the lease and convert the property to a park to improve public access to Octagon Mounds, part of the Hopewell Ceremonial Earthworks proposed for nomination to the World Heritage List.
Moundbuilders allows complete public access at four open house days a year. The rest of the year, public access is restricted to a small portion of the site from an elevated viewing platform and a short walking path, according to OHC. The entire property at 125 N. 33rd St., Newark, consists of 134 acres.
"The trial court used the lowest bar possible on eminent domain," Fraley said. "We believe the law requires a high bar. It's the private taking of private property, because OHC is a private entity."
The U.S. Department of the Interior said it would only forward the nomination for World Heritage if the golf course had been removed from the site. The World Heritage List includes sites selected by the United Nations Educational, Scientific and Cultural Organization as having cultural, historical, scientific or other forms of significance.
The appraised value of the course, the only issue Justice Fischer wanted to consider, centers on the fair market value OHC would pay for the property.
OHC offered Moundbuilders $800,000 to buy back its lease, based on an appraisal, but previously received an appraisal of $1.75 million, which was not disclosed until almost a year later. The trial court ruled the $800,000 offer was based on fair market value and the mere existence of a previous, higher value offer did not constitute bad faith.
"The statute requires a good-faith offer." Fraley said. "They got one appraisal and didn't tell us about it. They got a second appraisal, a lower amount, and told us about it."
Ohio Supreme Court Justice Judy French spoke Feb. 18, at a Newark Rotary Club lunch at Moundbuilders Country Club. She declined to discuss the appeal, but did talk about the court's process for reviewing cases.
"You don't necessarily have the right to come to the Supreme Court of Ohio to have your case reviewed," French said. "For the most part, we get to decide what we want to decide."
French said about 8,000 cases come to the 12 district courts of appeal, out of about 1 million non-traffic trial court cases. The Ohio Supreme Court gets 1,200 requests to take jurisdiction of cases, but the court only takes about 5% of them, she said.
The appeals courts determine if something went wrong at the trial court level, but the Supreme Court takes a different perspective, she said at the lunch.
"It's really not about identifying errors," French said. "We're looking at what the law should be. If you bring a case in and it's really just about you and your neighbor, we're probably not going to take that case. But, if it's about you and a property issue that is something very common in the state of Ohio, that's the kind of thing that we're looking for."
Moundbuilders has lost some members due to the eminent domain debate, but has recovered, gaining 60 new members this year and is close to its all-time peak membership, Fraley said.
"We've never been stronger," Fraley said.
kmallett@newarkadvocate.com
740-328-8545
Twitter: @kmallett1958
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