By Carol McIntire
December 4, 2012
Carroll County Commissioners and officials from Radius Hospitality and the Muskingum Watershed Conservancy District (MWCD) are waiting patiently (or impatiently) to find out if Atwood Resort will continue to operate under the ownership of the county.
Judge Linton Lewis heard from both sides during a hearing Friday on a preliminary injunction request filed by Robin and Don Warner on behalf of the investors of the Carrollton Days Inn and tax payers of Carroll County to prohibit the Board of Carroll County Commissioners from spending taxpayer dollars to renovate, improve and operate Atwood Resort and Golf Club.
Judge Linton listened intently during the nearly two and one-half hours of testimony from attorney for the Warners as well as the county, MWCD and Radius Hospitality.
Following the hearing, Judge Linton said he was allowing the attorneys 10 days to file briefs and would render a judgment after that time.
County commissioners received approximately 500 acres of land, the golf course and hotel as a gift from the Muskingum Watershed Conservancy District (MWCD) and then leased the facility to Radius Hospitality of Canton to operate under the terms of a five-year lease.
Attorney Kristen Moore of Canton argued the case for the plaintiffs (Warners); Atty. Donald Burns represented Carroll County Commissioners; Atty. Kevin Lundholm of New Philadelphia represented the MWCD and Atty. Ronald W. Dougherty of Canton represented the Radius Hospitality, all defendants in the case.
Moore argued that county commissioners are not permitted by law to operate a hotel and therefore, the facility should be shut down and the contract with Radius Hospitality voided.
She also argued that her clients are suffering irreparable damage because the contract is “slanted toward Radius because the county is paying all the set up costs and Radius doesn’t have to pay $1 in rent until the company realizes $3.5 million in room rental rates and getting all the benefits.”
She said her clients must compete with a government-subsidized facility in terms of room rates and other areas and the arrangement creates unfair competition.
She also claimed the taxpayers are being damaged because taxpayer money is being spent to renovate the facility in the form of oil and gas bonus payments and as such, the Warners can represent the taxpayers in the lawsuit.
“The money can be used for other public purposes and not wasted on unconstitutional and unauthorized purposes,” Moore stated while standing at a podium in front of Judge Linton in the courtroom.
“We believe the public’s interest would be served if the injunction is granted,” she stated.
Atty. Dougherty pointed out the Atwood facility was in operation long before the Warners built their hotel and they were aware of the competition when they built the Days Inn.
He noted the MWCD gifted the facility to the county with the stipulation all money from any oil and gas leases or royalties must be invested in the facility and grounds and therefore, there is no taxpayers dollars being spent; only oil and gas money that must be returned to the MWCD if the land is returned to the MWCD.
He asked where the irreparable damage was since no injunction was filed when the MWCD agreement was signed in February 2012 and none filed after the contract with Radius was signed in July and it was not filed with original lawsuit when it was filed in early September. He said it wasn’t until late October when it was filed.
“Where is the irreparable damage, when the plaintiffs showed no lack of urgency in filing for an injunction?” he asked.
Atty. Lundholm claimed the Warners have not met the four elements that must be met to receive a permanent injunction, including 1.) the probability they will be successful; 2.) they will be irreparably harmed by the conduct they complained of; 3.) the issuance of the injunction would not cause harm to others; and 4.) the public interest would be served by the issuance of the request.
“Is this truly a taxpayer issue or is it a private business complaining about competition?” he asked.
He noted what he called a “similar” situation already happening in Ashtabula County where the county leased land, which was then leased to a private company. “To some extent, that was model for this,” he said referring to the agreement with the MWCD and Carroll County commissioners.
Atty. Donald Burns argued the commissioners can operate the facility under Article 8 Section 13 of the Ohio Constitution, which Atty. Moore specifically prohibits such action.
He noted the taxpayers of Carroll County are not being harmed and the money is being used to create jobs for Carroll County residents.
“The taxpayers are benefitting from Atwood, not being harmed,” he noted. “They will be harmed if the facility closes.”
He also stated the Warner’s case does not meet the four elements for a preliminary injunction.