Benton Harbor park privatization gets hearing in federal court
DOJ argues that publicly funded park may be converted into pay-to-play golf course
Eartha Jane Melzer 8/31/09
By Bell opened the hearing by telling the parties that he had visited Jean Klock Park and was “well acquainted with the typography and geography of the area.” He said that he did not have much time to discuss the matter and set a two-hour time limit for all oral arguments in the case. “Please keep my interest,“ he said.
Terry Lodge, attorney for the plaintiffs, showed before and after pictures of the dunes, and argued that the scope of the golf project was trivialized in order to avoid federal environmental review.
Lodge said that though only 22.11 acres of the 78-acre park had been leased for golf conversion, in reality the majority of the park has been impacted by the Jack Nicklaus project.
Lodge said that the project’s environmental assessment failed to fully describe plans to excavate tons of sand from the dunes, establish turf, remove 8 acres of trees outside of the discussed conversion zone, and pave a portion of the beach. Lodge said that a retention pond created by Harbor Shores was not even mentioned in the project’s scoping document.
Bell’s first question referenced an argument made by the golf developers — that by building a parking lot on the beach they are increasing public access to Lake Michigan and thereby enhancing the park’s recreational value.
“You are not making the argument that the public doesn’t have greater access to the lake?” Bell asked as Lodge described the extent to which the golf course has reshaped the park.
Lodge said that public uses of the park have been diminished by the government’s approval of the park conversion. Natural paths for bird watching and picnicking are disrupted by golf greens and fairways, he said.
Lodge said that the dune area is a significant feature of the park and pointed out that developers have acknowledged the value of the dunes by arguing that the majestic views available from the top of the dunes were the critical dramatic element that would make the golf course work.
The park was given to the people of Benton Harbor in 1917 by John Klock in honor of his deceased infant daughter, Lodge said, and in the proclamation that accompanied the land transfer Klock specifically stated that the park was to be available to the public for picnicking, swimming and other recreational uses.
Bell seemed to question the value or significance of some of the park resources.
“When I toured the area,” he said, ‘I saw trees with a limited lifespan. I did not see hardwoods.”
Bell also questioned whether trivialization of a project’s impacts is a violation of law. Lodge said that it is.
As part of the deal to take control of Jean Klock Park, developers offered a series of inland parcels which they promise to develop into recreational areas that will compensate for the loss of parkland.
Lodge said that the National Park Service was “arbitrary and capricious” in approving this swap, “without considering that the public was not getting anything close to a fair trade.”
He said that the appraisals used to support the land swap were critically flawed. For example, he said, a 1.47-acre industrially contaminated inland parcel donated to the project by the Whirlpool Corp. was appraised at 80 percent of the value of 22 acres of pristine dunes overlooking Lake Michigan.
Lodge said that Michigan officials and developers failed to share information about the extent of pollution on the mitigation parcels with federal officials or the public. He said that records obtained from the Michigan Department of Natural Resources show that some of the mitigation parcels are so badly polluted that people may need to stay on paved paths in order to avoid harmful exposure.
Joseph Hosu Kim and Matthew R. Oakes, attorneys from the U.S. Department of Justice, emphasized that the scope of the hearing should be kept narrow and asked that the before and after pictures of the park not be allowed as evidence in the case.
The city of Benton Harbor can do what it likes with it’s park, the DOJ attorneys argued, and for purposes of the Land And Water Conservation Fund Act, the land offered in trade for the park was of “sufficient value.”
DOJ also stated that that a golf course is a “public recreational use.”
Although the federal government does require that land offered in trade for a public park be of “reasonable equivalent” value, it does not require that the land offer the same recreational opportunities, Kim told the court.
“It’s not true that it is ‘paths only,’ Kim said of the mitigation parcels. He said that the land has been deemed safe enough for a child to use it for 100 days in a year.
Bell asked Oaks what would happen if the applicants had minimized the impact of project: “Is the Army Corps monitoring the project? Would they step in if violations were occurring?”
Oaks affirmed that this is the case.
An attorney representing Harbor Shores, which was allowed to intervene and join the defendants as a party to the case, said that the golf course grew out of a community process started by the governor following civil unrest in 2003 and is intended to provide economic benefits to Benton Harbor where 42 percent of the residents are below the poverty line.
Lodge disputed this, stating that the group that recommended the golf course was at work the year before the riots.
“The Land and Water Conservation Fund was intended to preserve parks forever,“ park preservation advocate LuAnne Kozma said after the hearing. “They never should have allowed the conversion of a significant feature of the park.”
It is unclear when Judge Bell will issue a decision in this matter.
http://michiganmessenger.com/25597/benton-harbor-park-privatization-gets-hearing-in-federal-court