Owner of Barrhaven golf course trying to escape forever contract

A landowner is fighting to free itself from a contractual obligation to operate an unprofitable Barrhaven golf course forever.

The legal battle over Cedarhill Golf and Country Club revolves around a subdivision agreement signed in 1980, which requires "the continued operation of a golf course on the property in perpetuity."

Property owner Cedarhill Golf Enterprises asked a court to declare that obligation invalid and unenforceable. In a decision released this week, Justice Brian Abrams declined to do so.

The agreement allows the City of Ottawa to step in and take over the golf course, but Abrams said the city has no plans to do so, "and for good reason." Both sides seem to accept that the course is no longer financially viable.

Abrams told them to sit down for mediation, with an eye to potentially amending or altering the contract.

Trajan Schulzke of the Cedarhill Community Association said he and his neighbours value living so close to a wide open green space.

"We actually were really happy to see that the city made a significant effort, in our opinion, to hold the developers to their contractual commitments, and in the process protect our city's important green spaces," he said.

"Our residents feel strongly about protecting the area's tree canopy, the natural habitats, the open green space for the enjoyment of current and future generations."

Land purchased for $1

Abrams found the issues at stake are different from a seemingly similar case concerning the Kanata Golf and Country Club. In that matter, a court found owner ClubLink shouldn't be "saddled with a perpetual obligation" to run a golf course.

ClubLink is planning to build a development with 1,480 homes on that site.

Cedarhill Golf Enterprises bought the Cedarhill Golf and Country Club on the northwestern edge of Barrhaven in 1981 for just $1.

The company argues that the subdivision agreement is not a contract, but a planning instrument. It claims that there are other "appropriate and reasonable uses of the property" besides an unprofitable golf course, though the decision does not mention exactly what it's hoping to do with the land.

Story continues

The city argues that Cedarhill wants to redevelop the site and is thus trying to wriggle out of the contract.

Cedarhill Golf Enterprises is represented by lawyer Michael Polowin, who said he's not yet in a position to comment on the case. The golf course itself did not respond to a request for comment.

A 'complicated, nuanced and sensitive' case

Barrhaven West Coun. David Hill called the case "complicated, nuanced and sensitive," and said he needed more time to meet with legal staff and study its implications.

"It's super important," he said. "It's so important that I want to take the time to get this right and make sure we don't prejudice the process."

In his decision, Abrams mainly sided with the city, finding that the agreement is a contract that imposes binding obligations on Cedarhill Golf Enterprises. He also rejected any notion that the company is being expropriated.

When the plan of subdivision came to Nepean's planning board in 1977, then property owner Cedpar was "agreeable to keeping the golf course in perpetuity." Nepean's reeve said at the time he was not prepared to consider approving development around the site without a guarantee that the golf course would survive.

The agreement was registered in 1980, and came with a provision requiring the owner to "at all times operate the golf course in a good and businesslike manner."

But it also addresses the possibility that a golf course might, one day, become commercially unviable. In that case, the city could step in and decide to change the land use, but only to another kind of open space.

Adjourned for 120 days

There is also a separate provision that allows the property owner and the city to amend the terms with their mutual consent.

Abrams called that an obvious solution that could allow Cedarhill to stop running the golf course with the city's agreement. While he rejected essentially all of the company's arguments, he adjourned the application for 120 days to allow both sides to engage in mediation.

"The uncontested evidence of Cedarhill is that the golf course is financially unviable, which I accept," said the judge. "Thus, to force Cedarhill to continue operating the golf course in perpetuity would lead to an impractical result."

Schulzke said there are some in the community who want to save the golf course itself, though many others would accept a compromise that saves the land for recreation.

"That would be something which would accomplish what we're looking for, which is to be able to maintain the beautiful green spaces that we have in this part of the city," he said.

"Our community association is very interested in what's going to happen over the next 120 days, and we'll be actually continuing to seek an active part."