LEBANON — A developer’s legal green light to build housing at the site of a nearly 100-year-old golf course in Lebanon has been turned to flashing yellow by the state’s highest court, which ruled that restrictive covenants on the property were legitimately transferred to the Carter Community Building Association decades ago.
But at the same time, the New Hampshire Supreme Court stopped short of affirming whether the CCBA has a legitimate claim to enforce the restrictions on the Carter Country Club property, saying that issue is “better suited for resolution in the trial court.”
In an opinion released on Tuesday, the court overturned a Superior Court ruling that would have paved the way for the Carter Country Club to be developed into housing by the property’s owner, Doug Homan, and not bind it to covenants restricting its use when the 47-acre property was sold in 1986.
The golf course, which is off Mechanic Street near Interstate 89, was built in 1923 by noted golf course architect Donald Ross.
“There is no dispute that the deeding parties intended to enforce the golf course restriction by leaving reserved rights” to the transferring party, the 4-0 ruling said, calling the restrictive language in the deed “clear and unambiguous.”
The finding is important because it knocks one leg out of Homan’s argument that the restrictions on the golf course property were not legitimately conveyed to the CCBA and thus unenforceable.
Jeremy Eggleton, a Hanover-based attorney with Orr & Reno who represents the CCBA, hailed the ruling as an “unequivocal win” for his client because “the Superior Court had agreed to strip away the deed restrictions that protected the golf course.”
The ruling, he asserted, “restored the heart of the conveyance that the original Carter Country Club made back in the 1980s: the stipulation that the property be used for a golf course in perpetuity.”
Had the Supreme Court upheld the lower court’s decision that the CCBA’s covenants were not legitimately conveyed, “it would have been game over,” Eggleton said. But now the CCBA will have a recognized claim to press when the case is remanded to the lower court, he explained.
Messages left for Matthew Burrows, Homan’s attorney, were not returned.
The Supreme Court’s densely worded, 14-page opinion traces the property’s changes in ownership over the years and delves into the distinction between arcane legal concepts such as “right of reversion” versus “right of reentry,” which was at issue in the transfer of restrictions governing the golf course property. Each sets out a grantor’s future claims on a property but the former is transferable to a third party whereas the latter is not.
The Supreme Court opinion also contained a lengthy analysis of the wording in the 1986 document that transferred the restrictive covenants and found the language unambiguous in regard to the rights it was vesting in the CCBA.
Those restrictions, which state that “at all times, in perpetuity, a nine-hole golf course shall be maintained and operated on the premises,” had been inserted into the deed by late Meriden developer Edmond “Peanie” Goodwin to preserve the golf course when he sold the property to a Massachusetts developer in 1986.
But Goodwin at the same time separately conveyed the stipulated restrictions on the golf course property to the local nonprofit Carter Community Building Association.
Ownership of the golf course itself subsequently passed through an intermediary party before it was acquired by Homan, a New London developer who also owns Lake Sunapee Country Club in New London.
When Homan sought to build a development with hundreds of housing units at the golf course, he was blocked by the covenants held by the CCBA. He sued the nonprofit in Grafton Superior Court in 2018 to settle the title, alleging the property restrictions were not transferable to the CCBA and therefore void.
Superior Court Judge Lawrence MacLeod in a 2020 ruling sided with Homan and declared the conveyance of the property restrictions decades earlier to the CCBA was not “freely transferable” and that it had no legal say to protect the 47-acre public course from development.
The CCBA appealed the lower court decision to the state Supreme Court, arguing it had an enforceable future interest in the golf course property and arguments were heard in May.
Eggleton cautioned that the developer “likely has additional arguments to make about why the golf course restriction should not be enforced,” noting “it remains to be seen exactly how it is going to play out once the matter is taken up again in Superior Court.”
Contact John Lippman at jlippman@vnews.com.
