COMMENTARY | COLUMNISTS | DICK DANIELS

Legal battle looms over open space for golf course

Last week's action by the Escondido City Council to forever preserve the 110-acre Escondido Country Club as open space has transferred the issue from the court of public opinion, where community relations activities created resounding support for the decision, to a court of law, where law suits and judges' opinions prevail.

By a 5-0 vote before an overflow crowd, the council heeded the voices of more than 9,300 country club residents and other Escondido voters, whose petition to preserve the site as open space well exceeded the required 5,900 signatures.

The council's other options were to delay voting on the initiative for 30 days to allow an economic impact study to be prepared or send the matter to a citywide vote in next year's general election. There was the lesser alternative that never saw the light of day: Reject the petition and its initiative outright.

Rarely has this council been in total agreement when it comes to development proposals. It was an even greater departure from the norm when all five members sided against a developer; in this case, Stuck in Rough LLC, a Beverly Hills-based investment firm, headed by Michael Schlesinger, that acquired the 50-year-old country club and other distressed properties in late December.

The golf course was still green and a viable game venue, but the club had fallen on hard times. Membership had dwindled from 500 to about 130 members, which contributed to monthly losses well into five digits and a growing stack of unpaid property tax and water bills.

The initial presumption on the part of members and area residents was that the new owner would at least try to right the ship and continue to operate the club and golf course. Such was not to be the case. On April 1 — of all dates — the developer terminated club memberships, turned off the water for the golf course and announced plans to build homes on the site — several hundred, in fact — through the existing R-1-7 zoning.

It wasn't an April Fool's gag, but a rallying cry for the country club neighborhood residents who quickly hired locally prominent legal sages, Ken Lounsbery and Dave Ferguson, and began work in mid-May to gather signatures for a citizens initiative that would forever preserve the site as open space.

Barely two months later, the group had signed up three times the 3,100 registered voters who live in the country club neighborhood. Two things became immediately apparent to council members, three of whom are up for re-election next year.

First, the neighborhoods are full of "high-propensity" voters — political code for registered voters who actually vote in elections. Second, the initiative's impact coursed well beyond the country club area with two out of the three initiative signers living — and voting — elsewhere in the city. If ever there was to be an opportune time for council members to respond to public will, last Wednesday evening's council meeting was it.

Property rights had become the key issue for both sides. The developer has argued and will continue to argue in court that he has the right to develop and use the property under the allowable zoning. Period. Country club homeowners contend their smaller-than-normal home lots were developed in a density transfer deal a half a century ago that allowed the golf course to be counted as community open space. Forever.

"The property rights in question here are those of the country club residents," said Councilman John Masson after the hearing. The owner of a regional land planning and engineering firm, Masson said it was clear to him that the country club is a master-planned community with a golf course. In other words, the golf course is untouchable.

The council decision now fait accompli, Schlesinger and his team are moving the issue to the courts, where next month the legality of the initiative itself will first be tested. If found valid, what will follow will be a judge's decision as to whether the city-adopted measure amounts to a "taking" of his property without just compensation.

It is here where the stakes are the highest. If the courts affirm the initiative is a taking, then the developer is entitled to compensation for the property at its "highest and best use" — not just what he paid for it — since the council's action would have supposedly rendered the property virtually worthless. Schlesinger suggests that number would be $100 million.

However, council members, staff and others aren't giving much credence to such a decision, based on the legal premise by City Attorney Jeffrey Epp that the golf course was approved as a planned community's open space 50 years ago and that one cannot later take open space out of the plan and build housing on it.

A seasoned municipal law attorney who isn't given to legal bravado, Epp said he's more confident in this legal stance than he was in a mobile-home park case he took all the way to the U.S. Supreme Court and won 21 years ago.

The golf course remains open space but it is far from being the green space and pride of the community it's been for 50 years. That's a problem neither court decisions nor initiatives can fix.

Daniels is a North County Realtor as well as a public relations practitioner consultant and a former Escondido city councilman.

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