Court rules in foundation’s favor
WAYNESBURG – The Greene County Hospital Foundation will not be prevented from constructing a recreation center on Oakview Drive in Franklin Township by a restriction on the property deed, Greene County Judge Farley Toothman ruled Monday.
The foundation has proposed building a 44,500-square-foot public recreation center containing an indoor soccer field, basketball court, fitness center and multipurpose rooms on 7.6 acres of land it will purchase from Waynesburg Lions Club.
The foundation filed a motion with the court in March seeking declaratory judgment on an issue regarding a restriction in the deed on the Lions Club’s land.
The deed, originally conveyed by Grover C. and Marie C. Powell, prohibits construction of any buildings other than those to be used for “recreational purposes and/or residential purposes.”
But it also states “no business or professions shall be practiced or carried on upon any of the aforesaid tract of land.”
The foundation is constructing a building for recreation, but it stated in its motion that in order to carry out the purpose for which the center is to be used, it may employ certain professions. These may include administrative personnel, athletic trainers, fitness trainers, health educators, coaches and health professionals, the motion said.
The foundation asked the court to rule the use of the property for the foundation’s proposed recreation center does not violate the deed restriction and that the deed restriction is unenforceable in regard to the foundation’s use of the property for a recreation center.
Sixty-two property owners whose land is included in the Powell tract and who also have the same restriction regarding business and professions in their deeds, were asked to agree that the foundation’s proposed use of the land would not violate the deed restriction.
Of those, 59 signed documents in favor of the foundation’s plan and eight never responded, according to Toothman’s ruling.
One property owner, John and Michelle Wolen, who own a single-family home in which they do not reside, objected claiming the proposed use contradicts the deed restriction.
Toothman, however, ruled the deed restriction is unenforceable in regard to the proposed recreation center.
Whether the foundation contracts with a business or professionals for specialized recreational services or provides them with volunteers, “ultimately the facility is still being used for a recreational purpose, which the grantor permitted as a top priority, specifically listing it as the first exemption in Deed Restriction 1,” Toothman wrote. That restriction limited the property’s use only to “recreational purposes and/or residential purposes.”
Dave Jones, the foundation’s executive director, said Thursday the foundation must wait to see if Toothman’s ruling is appealed before moving ahead with its plans.
Franklin Township Zoning Board approved a special exception last December to allow the building to be constructed in the R-1 residential zone.