The owners of Longhills Golf Course and Country Club are now facing a new obstacle in their attempt to sell the property to Lindsey Development Co.
The latest development in the protracted efforts of Bud and Mary Jean Busken and Jeff and Sam Hamm to sell the site has come from the discovery of a document that City of Benton Attorney Brent Houston said "appears to be a covenant signed by William Martin in 1986 and filed of record in 1988 with the Saline County Circuit Clerk."
William "Bill" Martin is the original owner of the golf course site and built the course and its related amenities.
Houston said the document appears to place a restriction on the golf course property that provides that it can only be " ... be used solely as a golf course, together with such related activities as a tennis court, swimming pool and pro shop.â€ť
The document then provides a legal description to the property and references the Longhills subdivision, Houston noted.
"A fair interpretation of the document is that use of the property for any other purpose, including housing (whether single family residential or multi-family), will be a violation of the covenant.Â The document refers to the mutual benefits to be derived from the placement of the restriction, but does not state who is receiving the benefits of the promise."
Houston said he transmitted a copy of the covenant to Hugh Jarratt, an in-house attorney for the Lindsey Management Co.
"I wanted to know if his company was aware of the document and if they have an opinion concerning its enforceability with respect to their project," Houston said. On Friday, Houston said he had not received a response from the attorney nor from anyone associated with the Lindsey company Â Â
"There are a few issues which I believe need to be addressed by the city," Houston said.
He said these include, but are not limited to:
â€˘Whether the covenant is binding on the city with respect to the zoning application that is pending,
â€˘Whether the city may be exposed to liability in an inverse condemnation action, regardless of whether the zoning application is granted or denied,
â€˘Whether the city should table the matter until a court determines the enforceability of the covenant.
"It is my belief that litigation over this matter is coming and it is my desire to keep the city first and foremost out of it," Houston said.
Houston pointed out that his law partner, Terry Jensen, is a resident of Longhills and owns a home on a golf course lot.
"While there is not a conflict of interest in this case according to the rules of professional conduct attorneys follow, to avoid any type of question over the advice being given to the city in this matter, I am seeking an opinion from an attorney who practices outside of Saline County," Houston said.
The Lindsey proposal, which must be approved by the Benton City Council, calls for the construction of apartments adjacent to the golf course, but Lindsey has promised to keep the golf course with its amenities available to the public.
The owners want to sell the property and retire. The 10 city aldermen are considering the Lindsey plan, but no decision has been made. For the arrangement to occur, the council will have to vote to rezone the property from its current single-family housing designation to planned unit development.
Bud Busken has noted that the property has been on the market for four years. During that period, the city negotiated with the owners in an attempt to purchase the site, but city leaders eventually decided it would not be feasibly economically.
The only alderman to reveal how he plans to vote on the proposal is Joe Lee Richards, who said last Monday night that he will vote "yes."
The council has developed a reputation for not approving zoning changes that allow the construction of apartments.