July 2011 - Parks & Recreation - 36

LAW REVIEW continued from page 33

Public Park?
Plaintiffs had also contended that " Benton
Harbor's lease of a portion of Jean Klock
Park to Harbor Shores violates the restriction that the property be used for 'public'
purposes or a 'public park purpose' and be
'open for the use and benefit of the public,'
as contemplated by the deed restrictions on
the property (and the consent judgment). " In
so doing, plaintiffs had maintained the court
should " review evidence outside of the
deed to ascertain whether a golf course was
an intended use of the property or whether, as plaintiffs contends, the property was
intended for use as a passive use natural
park. " The state appeals court rejected this
argument. According to the court, it would
only " look to extrinsic evidence " if the language of the deed is " ambiguous. " Otherwise, the court acknowledged that it was
required to " look first to the specific language in the deed to determine the meaning of the conveyance. "
While the specific language of the deed
restricted use of the property to " bathing
beach, park purposes, or other public purpose, " the court noted that the deed did
not define " park purpose " or " public purpose. " Accordingly, to interpret the meaning of the deed, the court would define
these terms according to their common
usage and understanding as follows:
" Park " is defined in the American Heritage Dictionary (4th ed.) as, among
other things, " an area of land set aside
for public use as a piece of land with
few or no buildings within or adjoining
a town, maintained for recreational and
ornamental purposes. "
" Recreation " is defined as " refreshment of one's mind or body after work
through activity that amuses or stimulates; play. "
" Public purpose " is defined in Black's
Law Dictionary (7th ed.) as, " An action
by or at the direction of a government
for the benefit of the community as a
whole. " Golf is generally referred to as a
recreational activity, and a public golf
course has been found by courts of our
state to fall under the definition of both a
" park " and a " public purpose. "

While " Benton Harbor will lease a

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portion of the park to (non-profit) Harbor
Shores for the operation of a golf course, "
the court found this particular golf course
would still fall within the " plain, ordinary
meanings of 'both a public park and as
serving a public purpose.' "
Benton Harbor still owns the underlying
property and retains significant control
over the property, even sharing in its
physical occupation during non-golf
seasons. Benton Harbor also requires
that the course be open to the public
during reasonable hours, without discrimination of any kind, and receives
the profits from the same for the benefit
of the city.

In the opinion of the court, the original
drafters could have placed more specific and restrictive language in the deed if
the clear intent was that " the park be used
only in its passive, natural state as claimed
by plaintiffs. " Instead, the court found the
drafters of the deed " chose to employ
broader language such as " park " and
" public purpose. " As a result, the state appeals court declined plaintiffs' invitation
to look beyond the deed to consider other
evidence to determine the intent of original gift for Jean Klock Park.
Because these terms have plain, ordinary meanings, we read and apply the
deed as written. We do not find any
ambiguity in the language employed in
the deed, and thus need not review extrinsic evidence to determine the intent
of the parties.

Conclusion and Dissent
Having found that " a golf course falls within the definition of a 'park purpose' and/or
'public purpose,' " the state appeals court
affirmed the judgment of the trial court in
favor of defendants Benton Harbor and
Harbor Shores.
On February 4, 2011, the Michigan state
supreme court denied plaintiffs' petition to review the judgment of the state appeals court
(Drake v. City of Benton Harbor, 488 Mich.
1037, 793 N.W.2d 244 (2011). In so doing, one
of the state supreme court justices issued
the following dissenting opinion, expressing
concerns about the potential adverse impact
of this decision on future gifts of private land

www.NRPA .ORG

for public park purposes:
The only issue in this case concerns
whether a " championship Jack Nicklaus "
privately-owned golf course constitutes
a " park use, " consistent with J. N. and
Carrie Klock's deed to the City of Benton
Harbor of property to be designated as
Jean Klock Park in memory of their
daughter who had died in infancy. The
City, having previously sold a portion of
Jean Klock Park to a private developer
for a residential housing development,
now attempts to justify the use of a remaining portion of the park for a golf
course on, among other grounds, " underutilization " of the park, " economic
development, " " jobs, " and the establishment of a " tourist destination. " However
admirable these objectives, it is J. N. and
Carrie Klock's intentions that control
here, not those of the current city government, and the Klocks' intentions must
control even if they are now viewed by
the City as inconvenient to the pursuit of
objectives preferred by the City.
In my judgment, and for reasons that
require little more than resort to the
customary understanding of the term
" park " by ordinary users of our language, I believe that the City's use of
Jean Klock Park, by leasing portions of it
for 105 years to a private commercial
entity, the Harbor Shores Community
Redevelopment, Inc., for its use as a golf
course, constitutes a breach of faith with
the Klocks, and should be enjoined.
Although the City prevails today, it,
and other communities throughout our
state, may well come out losers tomorrow as later generations of
philanthropists look at the legacy of J. N.
and Carrie Klock and come to question
the faithfulness of government in upholding their intentions after they too
have passed. 
James C. Kozlowski, J.D., Ph.D. is

an associate professor in the School of
Recreation, Health, and Tourism at George
Mason University in Manassas, Virginia. E
Mail: jkozlows@gmu.edu . Webpage with
link to Law Review archive: http://mason.
gmu.edu/~jkozlows.
July 2011 - Parks & Recreation

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