Saturday, March 20, 2010

Sligo Creek Golf Course Gets a Boost

In response to a request for opinion by Delegate Ben Kramer (D-19), the office of Maryland’s Attorney General has found that a provision in the Maryland-National Capital Park and Planning Commission’s (M-NCPPC) lease with the Montgomery County Revenue Authority (MCRA) covering Sligo Creek Golf Course that permits the course to be shut down on a consultant’s opinion is illegal. This strengthens the hand of the Sligo Creek Golf Association in their efforts to keep the course open.

In 2006, M-NCPPC signed a lease with MCRA placing its four golf courses under MCRA’s operations. The lease contained a provision allowing MCRA to send one of the golf courses back to M-NCPPC if a third party found the course to have an “adverse impact” on the entire public golf course system and forbidding M-NCPPC to operate the property as a golf course if it competed with other MCRA-operated courses. The Attorney General’s office found that particular provision to be illegal. While M-NCPPC has the legal authority to lease its courses, it does not have the legal authority to delegate the decision on whether to close one of its courses to any third party – including MCRA or any consultant. Following is the relevant language in the opinion from the Attorney General’s office:

Under the Lease Agreement, if the Revenue Authority’s consultant determines that operation of a particular course is “adverse” to the golf system – a term not found in the statute and not defined in the Lease Agreement – and the Revenue Authority accepts that finding, the golf course is returned to M-NCPPC. If all that determination did was return the golf course to M-NCPPC’s direct control, there would be little issue under the nondelegation doctrine. However, once a park has been “extracted” from the lease and returned to M-NCPPC for that reason, the Lease Agreement purports to restrict M-NCPPC’s continued use of that park as a golf course for the remaining term of the lease, which could be as long as 40 years. M-NCPPC is barred from operating the park as a gold course even if, in M-NCPPC’s judgment, it is the most suitable use of the property.

The Lease Agreement thus effectively delegates a critical decision governing use of certain M-NCPPC parks, possibly for decades, to another agency – and, in a certain respect, to a private consultant hired by that agency – applying an undefined standard that may be at odds with the charge given to M-NCPPC in Article 28. In my view, M-NCPPC did not have authority to agree to a provision delegating its decision concerning the future use of a park that is extracted from its lease with the Revenue Authority. As a result, that provision is likely not enforceable by the Revenue Authority against M-NCPPC.

This is not to say that the M-NCPPC could not itself find the report of the Revenue Authority’s consultant persuasive, give credence to the Revenue Authority’s view that continued operation of a particular course is not viable, and come to the same conclusion. It could determine, for similar reasons, that Sligo Creek Golf Course should not continue to be operated as a golf course in its current form and that there are superior park uses of the property over the next 40 years. However, it is M-NCPPC, not the Revenue Authority or its consultant, that is charged by its statute with making the ultimate decision.
The Attorney General office’s opinion strengthened the argument behind Delegate Kramer’s local bill prohibiting M-NCPPC from signing leases that contain provisions forbidding it from operating park properties as golf courses. That bill was heard by the Montgomery County Delegation yesterday. The bill ran into opposition because even though Kramer had the law on his side, his manner of presentation offended several delegation members.

One person in the room commented, “Drama drama, as usual. Kramer is dislikable, and every word he said was losing votes. Then he accused Park & Planning of dishonesty. Not cool. More votes lost. Then he said anyone who votes against him doesn’t support honesty and transparency in government. More votes lost.” Delegates Kathleen Dumais (D-15) and Craig Rice (D-15) pushed to delay the bill. Delegates Luiz Simmons (D-17), Al Carr (D-18) and Ana Sol Gutierrez (D-18) pushed back in favor of the bill, with Delegate Jeff Waldstreicher (D-18) arguing that the Attorney General’s opinion clinched the case for the bill. Waldstreicher, Carr and Gutierrez represent the district that contains Sligo Creek Golf Course. Kramer’s bill won out by an 18-5 vote in the delegation, but not without a cost. One attendee fumed, “Delegate Kramer is arrogant and ineffective. Just because he says his bill is about whether you want transparency or don’t want transparency does not make it so. He has set up a false dichotomy to serve his own purposes. He may have won the battle today, but he also took one more step down the seemingly never-ending path of pissing off his colleagues.”

Because Kramer’s bill has passed the Montgomery Delegation, it has a good chance of passing through the General Assembly. But that does not decide the Battle of Sligo Creek Golf Course. All that will be decided is that MCRA cannot use its lease provisions to close Sligo. M-NCPCC could still decide to close Sligo on its own, and the County Council could decide not to subsidize it. Advocates for the course still have a lot of work to do.