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I have discovered that there is no shortage of interesting, sometimes humorous and occasionally outright quirky legal disputes that have a golf connection. Please enjoy

I also invite you to join the Golf Dispute Resolution Linked In group, which has more than 2000 members.

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By way of background, I am an attorney who serves as general counsel to a financial services company.  I also frequently serve as a mediator and arbitrator. And, of course,  I enjoy golf, most often at the Yale Golf Course. You can learn more about my experience here.

Now, for the required disclaimer, so I can remain in the good graces of the legal ethics powers-that-be:  This website, which may constitute Attorney Advertising in some jurisdictions, is for informational purposes only and does not constitute legal advice.

Best,

Rob Harris
rharris@golfdisputeresolution.com
914-482-2448

 

 

By: Rob Harris

New Hampshire’s Wentworth by the Sea Country Club has been ordered by a Superior Court judge to clear boulders, bushes and a fence it placed for the purpose of impeding public access to the beach through club property. The court found the public has a “prescriptive easement” to cross the property based on evidence of use for more than fifty years.

The court’s opinion noted that, since the 1950′s,  the area “was used by locals to dig worms in the mudflats during low tide. One witness said the area was known in the 1970s as ‘a make out spot…’  Other witnesses had testified that the area was accessed by the public for decades to surf, watch birds, walk dogs and launch boats.”

In directing that access be opened, the court was not persuaded by the course owner’s argument as to the downsides associated with public visits. As the court observed, “litter, dog feces and unintentional trespasses onto the golf course are minor, technical and remediable problems that cannot justify wholesale termination of the parking and access easements.”

By: Rob Harris

Those concerned with protecting domain names as well as branded names that are susceptible to use as domain names, take heed: “A one member UDRP [Uniform Domain-Name Dispute-Resolution Policy] panel rejected the complaint of the The Professional Golfers’ Association of America of Florida on the domain name pgagolfpassport.com which was registered sometime in 1995 or 1997.”

Usually, it’s the neighbors who sue the golf course, seeking to have trees installed to prevent the intrusion of golf balls. Here, however, there’s a neighbor suing to have the course cut down the trees, over the club’s objection that the trees are necessary to prevent the entry of unauthorized golf balls: “Posh golf club which claimed 32ft high trees on their course helped protect a company director’s house from stray balls are ordered to chop them in half

What’s wrong with that?: “A Southern California water district is giving golf course 25-year contracts but only 1-year deals to a wildlife preserve that shelters millions of birds and dozens of protected species, environmentalists claim in court.

 

By: Rob Harris

As the New York Times reports,

Crosby National Golf Club in San Diego, which is controlled by a Texas company that oversees many golf courses, filed for bankruptcy as a result of a dispute with a gated residential community that borders the course.

“The case was filed in Texas, given that the executives calling the shots have offices in Fort Worth.

“One of the residents in the dispute presented the judge with a motion to move the case to San Diego, the other place where this case might have reasonably been filed. The judge ultimately agreed, given that the golf course is in San Diego.”

According to the Times, what would otherwise be a “prosaic [case]…of little concern to anyone other than the litigants,” has been turned into a “bombshell” due to extraneous comments by the bankruptcy judge that take issue with the practice of certain large corporations to pick what they perceive to be favorable venues for bankruptcy filings.

Here’s the court’s full opinion–with the discussion of venue shopping found on the final three pages.

 

By: Rob Harris

Two Chicago suburbs–Lemont and Palos Park–are engaged in a battle as to who will be the place that Cog Hill and Gleneagles golf courses call home.

Until now, both courses have carried Lemont addresses. While the courses aren’t planning to move, neighboring Palos Park is moving in on them. Palos Park has launched an annexation effort that, if successful, would constitute a 2000 acre land grab.

Cog Hill and Gleneagles reportedly are cheering on Palos Park. They are not feeling the love from Lemont, having expressed displeasure at the treatment extended by its leadership. Additionally, they have their sights on Lake Michigan water, which Palos Park has promised to provide.

For more information about this interesting land dispute by adjoining municipalities, read here.

By: Rob Harris

“How is it possible that a golf club head cover can be unsafe?” So asks Jeffrey Herold, president of West Coast Trends, maker of the Club Glove, in a video questioning the appropriateness of California’s Prop 65.

Prop 65 is a mandatory chemical labeling law that, if a business owner’s group is to be believed, does little other than provide a revenue stream to California plaintiffs’ attorneys.

Others may want to be sure they keep their head covers property ventilated.

By: Rob Harris

The Greenbrier Classic added a nice twist to the payouts made for holes-in-one during the tournament. In addition to charities designated by the players receiving an award, the tournament awarded cash to the spectators in the grandstand, $100 for the first hole-in-one, $500 for the second, and $1000 for the third.

On July 2, two holes-in-one were recorded hours apart, by George McNeill and Justin Thomas. Reportedly, the Greenbrier resort owner, Jim Justice, went through the grandstands, handing out $192,000, in adddition to a total of $75,000 paid to charities named by McNeill and Thomas.

And why shouldn’t Mr. Justice play Santa Claus. After all, the Greenbrier’s non-profit financial affiliate had obtained hole-in-one insurance to cover the contingency.

However, according to a lawsuit brought by the insurers, the Greenbrier goofed. For one thing, it allegedly failed to pay the insurance premium. For another, the holes-in-one came from a tee box that measured 137 yards from the hole, while the insurance policy required the hole’s distance to be at least 170 yards.

I wonder if the spectators will return the money.

By: Rob Harris

Municipalities tax real estate based on the property’s valuation. In the case of a golf club property, should a well-managed club be subjected to higher taxes because its value is higher than that of a golf course that is not as well-managed?

This question is pending before the Wisconsin Court of Appeals in a case involving Kohler Co.

The particular tax appeal does not involve Whistling Straits–the Kohler-owned course that hosted last week’s PGA–but rather Kohler’s Blackwolf Run course.

The lower court sided with Kohler, rejecting the higher taxes that the Village of Kohler sought to impose.

On appeal, the Village argues that the court erred because it viewed the value of the golf course as independent of the value associated with the club’s management. As the Village argues on appeal, “business value, if any, associated with Blackwolf Run is ‘inextricably intertwined’ with the real estate, and taxable,as a matter of law.”

As the Village argues in its brief to the Court of Appeals:

“A world-renowned golf facility, such as Blackwolf Run, is a perfect example of a property where business value,if any, is ‘inextricably intertwined’ with, and appended to,the real estate itself. A ‘top 100′ golf course generates income based on the high quality and notoriety of the golf course improvements, not management ability or brand name. If a high end golf course is sold, the golf course and the quality of the golf course design transfers with the land itself.It does not stay with the seller or dissipate upon sale. A recently sold golf course’s layout and design will not change,and as long as it maintains competent management, its quality and ranking also will not change.

“Because the business value, if any, associated with Blackwolf Run is not independent of the property and would transfer to any buyer of the real estate, any such value falls under the scope of Wisconsin’s ‘inextricably intertwined’case law and is assessable, as a matter of law. …The location of Blackwolf Run,along the beautiful banks and valleys of the Sheboygan Rìver,would not change, but would automatically transfer to any buyer of the real estate. The challenging and highly regarded layout of the Blackwolf Run Golf Courses and its famous Pete Dye design and the fact that numerous high-profìle tournaments have been played at Blackwolf Run would also remain after any sale. A new owner could change the name to Bandon Dunes East and it would still be a ‘top 100′ golf course…

“Therefore, Blackwolf Run’s ‘raison detre’-providing a high quality, beautiful and challenging golf course at a premium price-’is a transferrable value that is inextricably intertwined with the land and “all buildings and[golf course] improvements thereon, and all fixtures and rights and privileges appertaining thereto.”‘

“The quality of the Blackwolf Run golf courses has an inherent income producing capacity. The inclusion of this inherent capacity in a real estate assessment depends only upon whether it can survive the sale of the underlying real estate, not whether a subsequent owner actually succeeds in fully exploiting that capacity….

 

“Because the business value, if any, associated with Blackwolf Run is generated by the golf course itself and is appended to the property, its real estate assessment must include that value, as a matter of law.”

Kohler, having prevailed in the lower court, will be filing its brief in the weeks ahead.

 

By: Rob Harris

For ten years, the Roses–H. Robert Rose and Gaynell–have undertaken to block their neighbor’s view of the golf course to which their homes are adjacent.

In 2007, a judge ordered the Roses to lower the height of the fence to comply with applicable requirements. The Roses complied with the court’s order, but thereafter built a new fence, leading the neighbors to again seek the help of the court. The court found the Roses in violation of the court’s order, a ruling influenced, perhaps, by the finding that the fence was “outside of the [sight] line of the … [the Roses’ home], providing no benefit to the Roses.”

Faced with what appeared to be a gratuitous attempt to “directly interfer[e] with the [neighbors'] unique golf course views,” the court ruled as follows:

“ORDERS that H. Robert Rose and Gaynell Rose, within 30 days after this Order is signed, remove, or cause to be removed, the existing wooden fence …;

“ORDERS that the permanent injunction in the Final Judgment shall continue in full force and effect and … orders that the Roses, their successors-in-interest, and all persons acting in concert with them, are permanently enjoined from erecting, placing, or altering any fencing, wall, or hedge without the prior written approval of the architectural control committee or the Board of Directors of the BTN—Phase One Subdivision…”

Persistence personified, the Roses appealed, and lost. Last week, the Texas Court of Appeals upheld the trial court’s decision. Barring a further, successful, appeal to the Texas Supreme Court, golf course views will soon be restored.

By: Rob Harris

Those playing golf these days at Texas’ Brookhaven Country Club are greeted by a sign that advertises, in a manner of speaking, an opportunity to acquire a home adjacent to the golf course.

Seems that a local family desires to sell their home–at least according to the sign. Whatever enhanced value may come from the golf course amenity, the sellers’ view of one of their neighbor’s may provide a countervailing factor. As the sign says, “House For Sale By Owner Because My Neighbor’s A Douchebag!”

Those interested in knowing more (and who wouldn’t) can read about it and/or watch the local news story.

By: Rob Harris

The South Carolina Supreme Court has issued an opinion denying relief to a developer whose plans to build a community, including golf courses, was swamped by FEMA’s designation of much of the property as a floodway. When the developer failed to persuade the county to override the designation and permit development to occur, it sued, claiming the county had implemented an unconstitutional “taking” of the property.

The opinion tracks the history in some detail. As to a prior potential purchaser, the court recounted:

“By the spring of 1998, Tee-To-Green, LLC, expressed interest in developing the property into a golf course and entered into a joint venture option agreement with Manning. During the contractual due-diligence period, Tee-To-Green ordered site plans, conducted environmental assessments and wetlands investigations, and commissioned an appraisal, which valued the property at $30 million; however, at some point during the due-diligence period, Tee-To-Green discovered FEMA was in the process of revising the flood map of Richland County and that the preliminary revised map was expected to reconfigure the regulatory floodway to include approximately 70% of the property. Ultimately, Tee-To-Green withdrew its option to purchase the property, as it was unable to obtain satisfactory assurances from the County that the levees could be upgraded in light of the imminent floodway designation. Tee-To-Green understood that the floodway designation thwarted its intended development and reduced the value of the property.”

The developer that ultimately purchased the property had even grander ideas. According to the court,

“Shortly after closing, Columbia Venture announced its plans for a $1 billion development on the property, which it called Green Diamond. The initial Green Diamond plans included residential uses, golf courses, an outlet mall, restaurants,hotels, offices, retail businesses, a research and development park, a retirement village, a theme park, and a wildlife expo, all to be constructed within the Congaree River floodplain.”

For the court, the legal issue was simple. While acknowledging that “government-induced flooding may, in some circumstances, constitute a taking that would justify compensation under the Takings Clause [of the constitution,… for flooding to amount to a taking, there must be a causal connection between the challenged government act and the increased flooding.” Here, of course, there was no such thing, but rather only a redesignation by FEMA that the property was in a floodway.

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