Moundbuilders’ appeal before high court
Newark country club battling effort by Ohio History Connection to acquire property by eminent domain
“We’re confident in our reasons for acquiring the lease.” Burt Logan Executive director and CEO of the Ohio History Connection
NEWARK – The Ohio Supreme Court will hear an appeal Tuesday morning from Moundbuilders Country Club, which seeks to reverse lower court rulings allowing the Ohio History Connection to reclaim the Newark golf course property by eminent domain.
The hearing, conducted by videoconference, begins at 9 a.m., with each side allowed 15 minutes. The justices may ask questions of the attorneys at any time during their presentations. A decision is not expected for possibly six months, or longer.
The proceedings can be viewed on the Ohio Supreme Court’s website, by clicking on the first item under announcements on the main page, or on The Ohio Channel’s website, ohiochannel.org, under Supreme Court hearing on its main page.
The court voted 5-2 in July to hear the case, with Chief Justice Maureen O’connor and Justice Patrick Dewine dissenting. The court has a slightly different makeup this year, after Democrat Jennifer Brunner defeated incumbent Republican Judith French in last year’s election, reducing the Republicans’ advantage to a 4-3 majority.
Joe Fraley, the attorney for Moundbuilders, said he’s never made oral arguments before the Ohio Supreme Court, but he’s well prepared because he’s been representing the country club on the case since 2014, when he said Ohio History Connection first presented the idea of a purchase of the golf course.
“The court can ask us questions and you never know where that’ll take us,” Fraley said. “I could get five words in and they’ll interrupt or I could get through the 15 minutes. But I think they’ll have questions.”
Burt Logan, executive director and CEO of the Ohio History Connection, said Deputy Solicitor General Sam Peterson will represent the OHC, offering the same evidence presented before Licking Common Pleas Judge David Branstool and the Ohio Fifth District Court of Appeals.
“It’s our opportunity to present to the justices the reasons we feel strongly the Octagon should be open to Ohioans to experience this one-of-a-kind site,” Logan said. “We’re confident in our reasons for acquiring the lease.”
On. Jan. 29, 2020, 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.
If the court upholds lower court rulings, the valuation of the lease would be determined in Licking County Common Pleas Court.
Logan said, “We’re working on preparing the (World Heritage) application, but these are parallel tracks. If World Heritage never materializes, we are still equally committed to making the site accessible to Ohioans.”
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 U.S. Department of the Interior said it would only forward the nomination for World Heritage if there has been a date determined for removal of the golf course. 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.
Fraley said the two issues are whether the OHC offer was in good faith, and if the trial court used the appropriate standard to determine the taking by eminent domain.
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.
Fraley said another issue, not yet ruled on, is Moundbuilders’ contract rights, which could be resolved with a return to the Fifth District.
David Kratoville, president of Moundbuilders Country Club, said the written evidence will likely be the most important in Tuesday’s hearing.
“It’s a case with thousands of court documents and testimony and exhibits,” Kratoville said. “It’s unlikely the oral arguments will make or break our case.” kmallett@newarkadvocate.com 740-328-8545
Twitter: @kmallett1958