press release federal appeal

8/3/2019 Press Release Federal Appeal

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FOR IMMEDIATE RELEASE:

JEAN KLOCK PARK FEDERAL LAWSUIT APPEAL HEARD

Cincinnati, Ohio - October 12, 2011 A three-judge panel of the US Court of Appealsfor the Sixth Circuit heard argument Tuesday concerning federal permits which allowedconstruction of a privately owned and operated golf course in Benton Harbor, MichigansJean Klock Park, one of the states oldest public parks.

FOR IMMEDIATE RELEASE:

JEAN KLOCK PARK FEDERAL LAWSUIT APPEAL HEARD

Cincinnati, Ohio - October 12, 2011 A three-judge panel of the US Court of Appealsfor the Sixth Circuit heard argument Tuesday concerning federal permits which allowedconstruction of a privately owned and operated golf course in Benton Harbor, MichigansJean Klock Park, one of the states oldest public parks. The federal District Court for theWestern District of Michigan at Grand Rapids had dismissed the lawsuit in January,2010. Plaintiffs sued the National Park Service and the Army Corps of Engineers inAugust, 2008, claiming those agencies violated the Land and Water Conservation FundAct, the National Environmental Policy Act , the National Historic Preservation Act andthe Clean Water Act when they issued permits for golf course construction in mid-2008.

At issue in the lawsuit is a lease between Whirlpool Corporation-backed Harbor ShoresCommunity Redevelopment, Inc. and the City of Benton Harbor which promises HarborShores up to 105 years quiet enjoyment of acreage atop the dunes of Jean Klock Park forthree holes of a Jack Nicklaus Signature championship golf course, the anchor for a newresort, second-home development built on former industrial land.

Because of federal grant money invested in the park, the City was required to create otherparkland of reasonably equivalent usefulness and market value to make up the loss of theacres leased to Harbor Shores for the golf holes. Plaintiffs argued Tuesday that the so-called mitigation parkland is unacceptable because the seven, scattered parcels making up


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the mitigation are contaminated, and only linear paths across the parcels termedisolation zones by Harbor Shores consultant will be safe for human exposure. Theyassert that the National Park Service failed to explain why there are exposure barriers onthe replacement parks in its Finding of No Significant Impact on the human environmentand failed to properly analyze the environmental impact of situating a golf course in Jean

Klock Park's dunes.

Appraisals determining the value of Jean Klock Park and the mitigation parkland also arequestioned by plaintiffs. The National Park Service relied on a 2004 Consent Judgmentlimiting uses of Jean Klock Park to public park uses in accepting an appraisal of$900,000. for 22 acres of Jean Klock Park, which in turn established a dollar figure forthe required mitigation parkland.

Plaintiffs cite a Michigan Appeals Court ruling that park uses include casinos, nuclear

reactors, hotels and airport runways, all commercial enterprises and argue that theConsent Judgment cannot be used to justify an artificially low appraisal of Klock Park,because the express use of the land contemplated in the appraisal is for part of a JackNicklaus Signature Golf Course, which Harbor Shores described as the main economicdriver for real estate sales in materials submitted to the National Park Service. Plaintiffsstate that if the land in Jean Klock Park is for an economic use, then the land must beappraised for its highest economic value, as required by federal appraisal standards.

Conversely, plaintiffs say, if the Consent Judgment does, in fact, limit the economicvalue of Jean Klock Park, thereby justifying the artificially low appraisal value, then a"high end" golf course, claimed by Harbor Shores as the essential component in a

$500,000,000. development, would not be an acceptable use of Jean Klock Park.

Plaintiffs believe that if the dual interpretation of the Consent Judgment is allowed,namely, artificially low land appraisal value when calculating value for rent under thelease and amount of mitigation required, and high land value when promoting the needfor use of Klock Park in order to impact on financial performance of golf facilities andsurrounding real estate," then, Plaintiffs argue, many parks will be up for grabs if localgovernments can devise similar legal arrangements in advance of park conversions.

On September 29, 2011, the Department of Justice lawyer representing the National ParkService and the Army Corps of Engineers filed a Suggestion of Mootness, a claim that

nothing can be ordered by the court to reverse or correct any deficiencies in the permits.Plaintiffs countered Tuesday that many violations of the lease agreement, documented ina Memorandum filed Monday by their attorney, Terry J. Lodge, would allow the court togrant relief, something which the federal defendants claim is impossible because the golfcourse is complete.

Foremost among those lease violations is an Easement granted in November, 2010, bythe Emergency Manager installed by the state to run Benton Harbor in lieu of its elected


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officials. The Easement over the most expensive mitigation park conveys exclusivebenefits to Cornerstone Alliance, a 20% owner of Harbor Shores, and its affiliates andguests and restricts the public from riparian uses, including fishing. The National ParkService had expressly disallowed a previous, nearly identical easement over the sameland and required its removal. Parties to the lease had agreed to terminate the easement

by the end of August, 2008, but didn't act until November, 2010, after plaintiffs had filedtheir final brief in the appeal and after the Emergency Financial Manager had assumedresponsibility for land sales and administration of contracts with no involvement of thecity commission.

In addition the US EPA has installed monitoring wells on another mitigation park locatedacross the Paw Paw River from a Superfund cleanup site under the control of a HarborShores subsidiary. The US EPA has recommended possible installation of moremonitoring wells on the mitigation park to analyze toxic chemical plumes which havemigrated onto the parcel from the Superfund site. Neither the toxic plumes nor thepresence of monitoring wells on the mitigation park was disclosed to the public in the

National Park Service Environmental Assessment of the mitigation parcels, nor was theCorps of Engineers advised by Harbor Shores of toxic chemical plumes migrating fromthe known Superfund site under the Paw Paw River so that the possible adverse effect onthe waters of the United States might be analyzed.

No date was set for the three-judge panel to rule on the appeal or the suggestion ofmootness. It could be months before the ruling is issued.

Press release distributed by Protect Jean Klock Park, a Michigan non-profit.

www.protectjkp.com

For further information, please contact Terry J. Lodge,419 255 7552 (office) or419 2057084 (mobile) or email: [email protected]

or email Julie Weiss [email protected]

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http://www.protectjkp.com/mailto:[email protected]:[email protected]://www.protectjkp.com/mailto:[email protected]:[email protected]

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