OSU WINS BATTLE FOR LAND

After nearly a year of court battles, a judge Monday took no time in assigning to Oklahoma State University the final piece of property for its athletic village.

Kevin McCloskey, left and his lawyer Harlan Hentges leave Judge Michael Worthington's courtroom Monday. BY Sherry Brown, Associated press

What is eminent domain?

Eminent domain is the power to take private property with just compensation for public use by a government entity.

How is it used?

Universities have used eminent domain rights since the 1950s, said Wendell Pritchett, a University of Pennsylvania professor specializing in property law.

Public universities like OU and OSU generally have an easier time exercising this power, even though Pritchett said a growing trend is for cities to use the threat on behalf of private schools.

Still, he said, a public university typically can get the land it wants cheaper.

District Judge Donald Worthington ruled OSU has eminent domain power to take the rental property of Kevin and Joel McCloskey. He also ruled the athletic village is proper use of that power and that the university acted in good faith to negotiate.

The brothers' property was the lone holdout of 87 properties OSU needed for the village from Hall of Fame Avenue to McElory and between Washington and Knoblock.

The home is about a half-block from campus and contains 631 square feet. The property is 3,000 square feet and sits where plans call for an indoor pitchers' bullpen in the village.

"The facts were all on our side,” said Randall Elliott, attorney for the OSU Board of Regents. "To say my client ... is not showing good faith is absolute, utter nonsense.”

The brothers and their attorney, Harlan Hentges, questioned the legal ground to take land to build athletic facilities and argued university officials did not present an adequate offer for the property, were not clear about eminent domain and treated some owners unequally.

Brothers sought far more than they paid

Elliott said while OSU made four offers — up to $62,000 — the brothers failed to make a counteroffer.

The brothers purchased the property for about $25,000 in the summer of 2005, several months before they heard about the village through media reports, McCloskey said.

Gary Clark, vice president and general counsel for the Oklahoma State University Foundation, said the brothers expressed interest in trading for university property, including a billboard at OSU-OKC.

The foundation assisted the university in acquiring the land. Clark said he made it clear that OSU had the power to use eminent domain.

The brothers did finally counter with an $89,919 offer.

A board of court-appointed appraisers valued the home at $84,000 — $64,000 for the value of the property and $20,000 from other value, including rent income and location.

Gary Shutt, OSU spokesman, said it's unclear when the university will tear down the home.

The brothers can appeal the judge's decision and have 30 days to make that decision. If their appeal is rejected or they don't appeal, a jury will decide how much money the brothers will receive from the university.

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