By RICK KRON
Leader staff writer
An appeal that the owners of North Hills Country Club have filed against Sherwood has been moved to federal court at the city’s request.
The case has been assigned to Judge G. Thomas Eisele, but no court date has been set yet.
“The appeal involves a number of constitutional issues that are better suited in federal court,” said City Attorney Steve Cobb.
Jim Rodgers and Thomas Eanes, owners of the North Hills Country Club, believe that Sherwood’s building moratorium killed their $5.1 million sale of the course and that the city may only offer up to $1.7 million for the 106-acre facility. According to their appeal, the city placed a moratorium on any development plans for the North Hills Country Club to get the sale price lowered and for more time to get an appraisal.
The appeal names the city, the mayor and all eight aldermen as defendants and asked Pulaski County Circuit Court Judge Tim Fox to reverse the city’s resolution and declare it “to be void and of no force and effect.”
According to the appeal, the city discussed and voted on the resolution April 23, even though it was not on the original agenda.
The resolution called for a “six-month moratorium on the filling of applications for rezonings, subdivision plats and for the issuance of building permits for the area known as North Hills Country Club.”
The Sherwood City Council voted 8-0 to approve the resolution. In the appeal, Stuart Hankins, the owners’ attorney, called the resolution “arbitrary, capricious, unreasonable, unlawful, oppressive and discriminatory.”
In the city’s response to the appeal, filed in federal court last Wednesday, attorneys Cobb and David Fuqua deny most of the claims in Rodgers’ and Eanes’ appeal, adding, “the defendants who are members of the Sherwood City Council are entitled to absolute legislative immunity from damages.”
The city’s answer also claims that the “moratorium is an action authorized by statute an does not violate any right of the plaintiff.”
The initial appeal states the city’s actions were improper because it only applies to “the North Hills Country Club property and no other property or property owner in the City of Sherwood is affected by it.”
Sherwood approved a building moratorium once before to stop the construction of an apartment complex. That builder filed a lawsuit, and the city pulled the moratorium.
This moratorium, according to the appeal, “effectively stops all development and pending or potential sales of the North Hills Country Club property in an unlawful attempt to cause termination of the real estate sales contract for the unlawful purpose of helping to obtain a direct economic benefit in the lowering of the sales price for the City’s intention of acquiring the North Hills Country Club property for use as a municipal facility.”
Cobb and Fuqua, in the city’s answer, said, “The parties have no reasonable expectation that the city of Sherwood would not exercise its land use regulatory authority, and any such action by the city would not substantially impair the alleged contract.”
The city closed its answer with “the actions of the city of Sherwood did not directly impair any contract of the Plaintiff or right of contract.”
The city asks the federal court to turn down the appeal and have Rodgers and Eanes pay all court costs.
Hankins wrote in the appeal that the owners had entered into a written agreement with Ron Campbell and Roy Marples to buy the acreage for $5.1 million. Campbell and Marple envisioned turning the property into a gated high-end development of single-family homes.
“The closing of the country club and the sale of North Hills Country club property to developers were motivating factors in the City’s adoption of the moratorium resolution,” the appeal claims.
The appeal also claims that the moratorium “effectively grants the city a free option to purchase the North Hills Country Club property for six months while the city decides whether or not to condemn the property presumably based upon the conclusions of a feasibility study and an appraisal of the property.”
Hankins said the moratorium is “unlawful because its stated purpose exceeds the statutory power granted to cities to condemn property.”
