The Joplin Globe, Joplin, MO

December 9, 2009

Oklahoma: High court affirms ruling in OSU eminent domain case

The Associated Press

OKLAHOMA CITY — The state Supreme Court says Oklahoma State University was authorized to use eminent domain to obtain the final piece of property needed for an athletic village in a case where the university battled two brothers over the future of their tiny ranch house.

In an 8-1 decision handed down Tuesday, the state’s highest court affirmed Payne County Judge Donald Worthington’s July 2007 ruling that authorized OSU to take title to the house a half-block from the school’s Stillwater campus, a decision appealed by property owners Kevin and Joel McCloskey.

But the Supreme Court remanded the case back to Worthington for a jury trial on how much the university must pay for the 631 square-foot property.

The brothers, who operate a small business called McCloskey Brothers, Inc., challenged OSU’s use of eminent domain — the taking of private land for a public use — for the $316 million athletic complex. They also claimed the university’s Board of Regents was unconstitutional because it did not abide by a requirement that at least five of its eight members be farmers.

The McCloskeys’ attorney, Harlan Hentges of Edmond, said they are considering asking the Supreme Court to rehear the case.

“The troubling thing is that your property can be taken by people who don’t hold their offices lawfully,” Hentges said. “You can say that law’s not important if you want. But who gets to decide what laws we abide by and what ones we don’t?”

The McCloskeys have maintained their home was worth more than OSU’s offers of $50,000, $54,000, $59,000 and $62,000 because of its proximity to campus and the task of finding a similar property to replace it. Their final counter to OSU asked for more than $89,000.

“OSU wants to pay less,” Hentges said.

The brothers purchased the property for about $25,000 in September 2005, about the same time OSU began expressing interest in the property for an athletic village. OSU’s regents filed a petition to acquire the property through eminent domain in August 2006 after negotiations broke down.

In its 27-page ruling, the Supreme Court rejected the McCloskeys’ claims that the regents’ actions were invalid because a majority are not farmers as required by the state Constitution. Justices ruled they were legally authorized to launch eminent domain proceedings because they were appointed by the governor and approved by the Senate.

They also rejected accusations that the regents did not act in good faith and that the McCloskeys’ property was not taken for a valid public purpose under eminent domain guidelines.

Under state law, “the regents are authorized to take land for the construction of, among other things, field houses, stadiums and other revenue-producing buildings,” the ruling says. “The proposed athletic village fits squarely within this stated purpose.”

Although the home was bulldozed in late 2007, Hentges said the athletic complex has not yet been built.

“It’s just a vacant lot,” he said.

Plans for the athletic complex include an indoor practice complex, outdoor practice fields and a baseball stadium. It is due in large part to a $165 million gift from oilman alumnus T. Boone Pickens, the biggest donation ever made to an NCAA sports program.

OSU wants to eventually install outdoor practice fields where the home stood.