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. 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 paidElliott 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.
Legal arguments failed"Do we need to turn over some keys or something?” Joel McCloskey asked his attorney. Kevin McCloskey said the brothers did not have some moral belief that led to their fight — they just wanted to replace their property. He said they won't be looking in Stillwater anymore. He compared the university's bid on his and his brother's rental home as offering a "Timex for a Rolex.” "I was willing to do things which I thought were extremely fair,” he testified. The brothers lost a court argument in April when the judge ruled they could not question the validity of the OSU Board of Regents. They argued the board was unconstitutional because at least five of its eight members were not farmers, which the McCloskeys said was required. Kevin McCloskey testified he was confused whether it was OSU or a foundation that wanted the land, and whether that entity had eminent domain power. He said he never got a straight answer. He said officials on behalf of OSU tried to induce a sale by showing him how much the university was paying for other properties. But while his property was a half-block away from campus, the properties shown to him were at least six blocks away, he said.
Do sports justify eminent domain?Hentges, the brothers' attorney, questioned whether an athletic village really supports the public spirit of eminent domain. But Mike Holder, the university's athletics director, said athletics and academics are directly related. "Each athletic team is an extension of the university,” he testified. "What happens in athletics also affects the future of the institution. It's a way to express (that) you're striving for excellence.” Successful sports teams lead to donations and gifts to the university, Holder testified. And they get graduates back on campus and lead to future student enrollment, he testified. After the judge announced his decision, Holder and Kevin McCloskey shook hands and chatted briefly. "I'm a supporter of OSU,” McCloskey said. "I think he is ... one of the best fundraisers on Earth.” The $316 million athletic village sits on an 80-acre site north of Boone Pickens Stadium. The complex will house an indoor multipurpose training facility, baseball stadium, track, soccer and indoor as well as outdoor tennis facilities. Boone Pickens, a Texas oilman and OSU alumnus, donated $165 million for the 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.