CONCORD — Justices on the New Hampshire Supreme Court on Thursday pressed an attorney for the Carter Community Building Association on why they should overturn a Superior Court ruling that could allow the Carter Country Club to be developed into housing.
At issue is a decades-old deed for the Lebanon land, now owned by New London developer Doug Homan, but which the CCBA says protects the golf course from development.
The case, an appeal of a 2020 Grafton Superior Court decision, largely hinges on what type of protections the late Meriden developer Edmond “Peanie” Goodwin inserted into Carter Country Club’s deed when he sold the 47-acre golf course in 1986.
Goodwin, hoping to preserve the course built in 1923, stipulated in the sale agreement that “at all times, in perpetuity, a nine-hole golf course shall be maintained and operated on the premises.”
And if a golf course is not available for more than one year, the agreement said, the title would revert to the nonprofit Carter Country Club Inc., a group that then transferred its rights to the CCBA and dissolved.
Hanover-based attorney Jeremy Eggleton, who represents the CCBA, argued Thursday that the deed was intended to act as a reverter, a type of covenant that would see the nonprofit automatically take ownership of the golf course if Goodwin’s stipulations aren’t met.
“If you look at the deeds in their totality, looking at what the intent of the parties were, you can’t come to the same conclusion that the trial court did on that question,” he told the justices.
However, that view was challenged by Senior Associate Justice Gary Hicks, who said people can “intend whatever they want.” But, he said, those intentions need to be backed up by law and precedent.
Hicks also pondered whether the deed could be the product of “careless drafting.”
“That’s been known to happen in New Hampshire,” he said.
Eggleton responded by saying that the sale was carefully planned not just by the developers, but attorneys and community members who sought to keep Carter Country Club open.
“There was a manifest requirement that the grantee, in this case, maintain a golf course in perpetuity,” he said of the agreement. “We’re not talking about a 10-year condition of some kind. This was intended to be a golf course in perpetuity.”
Meanwhile, Concord-based attorney Samantha Elliott, who represents Homan, argued that the agreement’s language actually amounts to a right of reentry, another type of protection that allows a seller to take back ownership of a property if their wishes aren’t met. But, unlike a reverter, that transfer would be at the discretion of the seller, not automatic.
Another key difference is that rights of reentry are not transferable, meaning the Carter Country Club Inc.’s hand-off to the CCBA would be invalid.
Elliott said that means the CCBA has no rights when it comes to the golf course’s future.
“This is not about magic words. This is about what right was created,” Elliot told the justices.
Grafton Superior Court Judge Lawrence MacLeod last year found that the restrictions were a right of reentry and therefore couldn’t be enforced by the CCBA, leading to Eggleton’s appeal and Thursday’s hearing.
Elliott also attempted Thursday to cast doubt about Goodwin’s intentions, pointing out that he sold the land to developer Fred Fish, not a nonprofit.
“If you look at the language in the deed, all that is required is that Carter maintain a golf course. Carter’s not required to maintain a public golf course, Carter’s not required to maintain a municipal golf course,” she said.
“Carter can be well within the four corners of that restriction and say that the only person who’s allowed to play on that golf course is Justice Hicks,” Elliott added.
That prompted Hicks to say that allowing only him onto the course is “absurd” and went on to ask whether the agreement created ambiguity that would lead justices to further explore Goodwin’s intentions.
“How does it create an ambiguity? The deed is very clear,” Elliot said.
“Because nobody wants to see Justice Hicks play golf,” responded Associate Justice Patrick Donovan with a laugh.
The outcome of the case could determine whether Homan, the owner of Lake Sunapee Country Club, again attempts to develop on the Carter Country Club property. For 3½ years, he unsuccessfully sought Planning Board permission to build a 306-home subdivision uphill from Mechanic Street that would have relocated the course.
Homan then came forward in 2018 with a new proposal for 186 senior housing units, 400 apartments, a 300-seat restaurant and 60,000 square feet of retail space.
That project was never formally submitted to the city.
Tim Camerato can be reached at email@example.com or 603-727-3223.