Deal would let public back on fly-ash golf course

CHESAPEAKE

A deal that would allow a golf course made from 1.5 million tons of fly ash to reopen to the public until the fall, averting its closure and any related lawsuits, is set to come before the City Council on Tuesday.

"There's a recognition of the situation that my clients are in," said Richard H. Matthews, representing MJM Golf LLC, the owners of Battlefield Golf Club at Centerville. "It gives everybody a chance to take a deep breath."

Essentially, the agreement would allow the golf course to continue operating as it did from its opening last fall until the end of March, when the city cited the owners with operating without a building permit. The result was that only club members could use the course.

As part of the deal, both the city and MJM would agree not to take any legal action against each other before Oct. 1.

If the deal is not approved, the golf course will be out of money on Friday and would be forced to stop all operations, including maintenance of the property, Matthews said. A lawsuit filed by the owners against the city would be certain to follow, he said.

"We intend to recommend to the council that the agreement is approved," City Manager William E. Harrell said Friday.

Key considerations for the city are the agreement's removal of any deadline for residents to file claims against the golf course owners for well damage linked to the project, as well as the assurance of maintenance of the property.

Other provisions include city action on the golf course owners' building plans for a permanent clubhouse, parking lot and other improvements. Approval would hinge on acceptable results from an intensive environmental site assessment.

Earlier this week, Matthews said that the city's restrictions amounted to an unconstitutional "taking" of the land.

The agreement would come seven weeks after a report about the golf course in The Virginian-Pilot, which focused on the potential environmental threat to groundwater from an array of elements in the fly ash, a powdery residue left from burning coal for electricity.

The fly ash used on the course came from Dominion Virginia Power's coal-burning power plant in Deep Creek. The project was reviewed by the Virginia Department of Environmental Quality and found to be in compliance with state regulations. The U.S. Environmental Protection Agency encourages the "beneficial use" of coal-combustion products such as fly ash and has a Web page to support it at www.epa.gov/rcc/c2p2/index.htm

Dominion officials say the fly ash used on the course was chemically treated to block any leaching by potentially harmful elements such as arsenic and lead.

City officials have identified roughly 200 potable wells within a 2,000-foot radius of the outer boundaries of the golf course. Water tests at 75 properties near the golf course last month showed elevated boron levels. Boron is considered a "marker" for fly-ash contamination.

City officials, however, say they still are evaluating the data and aren't certain what caused the higher boron readings.

As the city's testing program unfolded and the publicity increased, activity at the golf course fell off dramatically.

Mike Waugh, the golf pro and manager of the course, said 13 golf events have been canceled.

"To have that much business fall off the books, that's a tremendous blow," he said.

Environmental issues related to the course have "nothing to do with golfers playing on top of the ground," Matthews said.

On Wednesday night, Waugh took his case directly to those who live near the golf course, at a civic-league meeting attended by roughly 50 people.

By a 42 -7 vote, the attendees backed the idea of letting the golf course continue to operate while environmental questions are addressed.

Kathleen Lowery, who lives on Murray Drive along the southern edge of the golf course, voted in favor of the owners but was philosophical about what it would mean in the end.

"Whether they open it to the public or not doesn't make any difference," she said. "The damage has already been done; the fly ash is there."

Matthews said MJM received assurances from every governmental entity involved that the project was environmentally sound.

"We're not bad guys here," Matthews said, adding that MJM was the last act in a production that began seven years ago.

All the company did was buy the land - in January 2007 - and later finish construction of the golf course, he said.

"With no revenue, we can't keep it open," Matthews said. "We're trying to do the right thing, but we're being run out of business."

Matthews is an attorney at Pender & Coward, a law firm based in Virginia Beach. Among the principal owners are Mike Dorfler, Jason Hand and J. Mark Sawyers, all in their 30s and self-described golf buddies who had a dream of opening their own course.

The "MJM" moniker is based on the initials of their first names.

Sawyers is son of U.S. Rep. Thelma Drake. He said she is not involved in the project.

A conditional-use permit for the golf course project was unanimously approved by the City Council on June 20, 2001.

Robert McCabe, (757) 222-5217, robert.mccabe@pilotonline.com