Court rules for Lee County in hospital construction dispute

LEESBURG — A Superior Court judge has ruled in favor of Lee County in a lawsuit filed by homeowners opposed to the county’s plan to build a 50-bed hospital on what is now Grand Island Golf Course.

After listening to more than four hours of arguments and testimony presented by Lee County Attorney Jimmy Skipper and plaintiff’s attorney David Orlowski concerning the merits of a lawsuit brought against the Lee County Parks and Recreation Authority by the Grand Island Homeonwers Association and property owners John Rufener and John Ricketson, Lee County Superior Court Judge Rucker Smith wasted little time issuing his ruling.

“You failed on the merits,” said Smith, following the attorneys’ closing arguments. “I don’t think the covenants prohibit the building of anything on the golf course as long as there’s nothing obstructing the view to the golf course line, property line.”

The primary basis of the lawsuit, which was brought against the Recreation Authority as the sole owner of the 155 acres where the golf course is located, was that the construction of the hospital was in violation of an easement granted to Grand Island subdivision homeowners by John Gay, who originally developed both the golf course and the adjacent property.

The easement declares that “a perpetual easement for vision and sight from the adjacent properties to the golf course property is hereby granted in perpetuity for the use, benefit and enjoyment of each owner or subsequent owner of any portion of said adjacent properties.” Orlowski argued that the easement precludes the construction of a hospital anywhere on the golf course property because it would obscure views of the golf course property from homes in the subdivision.

Orlowski also argued a second area of the easement document that states that no artificial or man-made barriers could be built on the property that would block the view. He argued that the hospital would constitute such a barrier, despite Skipper’s assertion that a barrier means “a fence.”

“A fence is an example of a barrier; a barrier is simply a structure or a thing that obstructs,” Orlowski said in his closing arguments. “There are all sorts of barriers in this world, and they’re all not fences. Okay. And it says, ‘blocking the view.’ I can stand here and block (Ricketson’s) view (to the judge). I think we all can agree that’s blocking his view. Can he step over and then see? Yes. Nonetheless, I am a barrier to where he is and his vision and, yes, I’m blocking his view. Mr. Skipper’s argument (is) ‘Well, you know what all you homeowners who have all these lots? If we can show just a sliver over here, we’re not blocking the golf course.’ It’s a violation of this to the extent that this thing’s valid.”

Skipper countered Orlowski’s arguments.

“Paragraph one states that the people on the adjacent properties have the right to see the golf course property; that’s all it says,” said Skipper. “If this hospital was going to be built right up against the property line, then there may be a couple of lots here who could not see the golf course property. But there’s nobody in any of these lots who cannot see the golf course property.

“There’s just no situation where these covenants are violated. It makes it clear that this does not prevent anybody from seeing the property.”

Smith agreed in his ruling, saying that whether the document in question is an easement or a restrictive covenant, he did not believe building a hospital on the property would violate it.

“What (a paragraph in the document) says is for vision and sight from the adjacent property to the golf course property,” explained Smith. “It doesn’t say ‘across’ the golf course property. It doesn’t say ‘along’ the golf course property. It says you can’t build anything on the adjacent property that would prevent your sight to the line of the golf course property.

“My interpretation of that covenant is vision and sight from the adjacent property to the golf course property, which means as long as you can see the edge of the golf course property, you have not violated that covenant. That’s my interpretation of the covenant.”

Smith also addressed the paragraph about the natural or artificial barrier, pointing out that the paragraph actually addressed the view from the golf course to the subdivision properties, meaning the plaintiffs would not be the parties impacted if that portion of the easement was violated.

“What that says is, looking backwards, looking from the golf course to the property, you can’t build anything there that interrupts (the view),” said Smith. “… (T)here’s nobody claiming they’re being damaged because they can’t see the real estate that surrounds the golf course. The person who would have standing, I guess, would be the Recreation Department, whoever it is who would be standing on the golf course looking in reverse back at the property, because that’s what it says.”

Following the outcome of the hearing, county officials lauded Smith’s decision, saying they were not surprised by the ruling.

“I kind of felt like this was the direction we were heading,” said County Commissioner and Parks and Recreation Authority Chairman Luke Singletary. “Our case was fairly strong, based on the law and the facts, and I thought that this was probably the direction we were headed. But you never know until you get in there.”

County Commission Chairman Rick Muggridge was more succinct as he left the courthouse saying, “I’m happy.”

The spirits on the plaintiff’s side were not as high, and Orlowski declined to comment on the judge’s decision, saying that because there was a strong likelihood that he and his clients would file an appeal, he would prefer to wait until after the matter was completely settled.

Although he did not elaborate, Ricketson did address the media, saying simply, “We’re disappointed.”

Despite being pleased with the outcome, both Singletary and Muggridge addressed what it means for the homeowners in Grand Island.

“I think that the county’s willing to work to make this a smooth transition for them and for us,” said Singletary. “Hopefully, the homeowners association and the county and the hospital group can work together to come up with a plan that’s suitable.

“I mean it’s a huge economic impact for not only Lee County but Southwest Georgia ,so the economic impact is the biggest part. Also, it brings in another option for health care. It brings in choices for patients, a little bit of opportunity.”

“I’m no appraiser, but at the end of the day, I think everybody, including the residents of Grand Island, is going to be well-served,” Muggridge added.

With the civil matter settled for the time being, plans for the Grand Island property are continuing to move forward. Henry Johnson, chief strategy officer of Freese Johnson LLC, the Marietta-based firm that will build the hospital, addressed the next steps after the hearing, including the expected time frame for the hospital development group to apply for a Certificate of Need with the state Department of Health.

“We’re excited that the hospital is moving forward for the citizens of Lee County,” said Johnson. “But regardless of the outcome, we want to do our best to work with Dr. Ricketson and the homeowners association. We would like to be good neighbors, and we definitely want to work closely with them to make sure that we do the things that are right. We want to work with the county to make sure the homeowners have good, protective buffers, and I think their property will actually be enhanced by the hospital coming there as opposed to an empty weed field.

“We hadn’t really gotten to the point of starting any plans. We’ve been focused on the CON process, so the injunction really didn’t stop anything because we weren’t doing anything to stop. Right now, the timeline for the CON is to start that pursuit here in January, and we were hoping that some time in the first quarter the CON application will be filed with the state.”

In the meantime all golf operations at Grand Island are set to cease on Thursday.