By Mike Dougherty
SCARSDALE – The grass is extraordinarily green on both sides of the fence that separates the meandering second hole at Quaker Ridge Golf Club and the backyard retreat owned by Leon and Gail Behar.
This is not a typical suburban barrier.
The fence is a 40-foot net erected by the club in an effort to stop golf balls from leaving the property while a lawsuit filed by the Behars alleging nuisance, trespass and negligence is argued and appealed. It’s a case that private clubs and public courses in the Lower Hudson Valley are monitoring because of the impact it would have should the courts side with the plaintiffs.
“Nobody in their right mind would think this is acceptable,” said Leon Behar, who moved into his stately $3.7 million home in the Scarsdale Manor subdivision in November 2007.
Quaker Ridge Golf Club and Brittany Close neighborhood
In recent years, Winged Foot Golf Club in Mamaroneck and Patriot Hills Golf Club in Stony Point have been forced to address issues related to golf ball incursions. If Quaker Ridge doesn’t prevail in court, the number of private and public courses sued by neighbors could increase. And taxpayers might be on the hook if public courses such as Saxon Woods are one day forced to make alterations.
“I think the negative impact of this becoming a precedent would be significant,” said Metropolitan Golf Association executive director Jay Mottola, whose organization represents 565 clubs and courses in New York, New Jersey and Connecticut. “Property owners might feel empowered if this injunction stands … and if we reach a point where clubs have to redo tees and holes, it would become a real financial burden. Some do not have the resources to deal with this.”
Column: Historic Quaker Ridge course should be preserved
Quaker Ridge was designed by renowned golf course architect A.W. Tillinghast. It opened for play in 1918, and numerous publications continue to rank it among the nation’s top 100 courses.
For the better part of nine decades, each towering slice off the second tee fell harmlessly in the woods along the right side of the fairway. When the Village of Scarsdale approved the sale of the land to a developer in 1999, officials from Quaker Ridge moved to secure and record a tree preservation plan. They also lobbied for a larger-than-normal setback, knowing that golf ball incursions might become an issue. The need to adhere to the specific plan on file was attached to the property’s deed.
White Plains attorney Julius W. Cohn is representing the Behars. He maintains Quaker Ridge knew Lot 4 — on which the Behars’ house sits — would become a resting place for numerous errant golf balls. He says the club should have purchased the property or done more at the outset to warn prospective buyers.
“The place is regularly bombarded,” he said, suggesting that his clients had to join Old Oaks Country Club in Purchase because they couldn’t use their own backyard.
Quaker Ridge has expanded its legal team, enlisting Judith Kaye and Scott Musoff of Skadden, Arps, Slate, Meagher and Flom in New York City.
“We have been in existence for 100 years and have always had a great relationship with our neighbors,” club president Marc Friedman said. “Even though the Behars’ own conduct is creating the situation we face, we’ve been cooperative and proactive in working with them to resolve their concerns, and that is what makes this so disappointing. It’s simply unfair to place the burden entirely upon the courses to remove virtually any risk of golf balls landing on their property.”
Cohn also took Winged Foot Golf Club to court when a tree removal project on the sixth hole of the East Course exposed a neighbor’s backyard. The dispute ended in 2008 when the Mamaroneck club bought the plaintiff’s home. Patriot Hills, a municipal course in Stony Point, responded to a neighbor’s lawsuit by redesigning the sixth hole in 2011. The modifications included lower tee boxes and the addition of native grasses down the right side of the hole to discourage golfers from using a driver.
The tree preservation plan secured by Quaker Ridge singled out a pair of mature trees, indicating they were integral to the defense of the neighboring property. One came down in a storm in June 2008, destroying a number of adjacent trees in the fall. The other was removed with approval from the Village of Scarsdale when the Behars constructed a pool.
Leon Behar said neither tree was part of the natural screen on the property line.
In hopes of stopping play on the second hole and preventing members in pursuit of bad tee shots from trespassing, the Behars filed a lawsuit in Westchester Supreme Court in April 2010 seeking a preliminary injunction. They have also sued the developer, claiming the risks of building on the site were not adequately disclosed.
The animosity has only increased.
Quaker Ridge did take immediate steps to mitigate the problem. The club installed the net after the Scarsdale Manor homeowner’s association objected to a higher net, and planted a stand of 20 maple trees. The Behars planted a row of spruce trees on their side of the fence.
In the courts, the club prevailed initially, as two justices rejected the plaintiffs’ claims on four separate occasions.
“There is no assumption that every golfer is going to be 280 yards straight down the middle of the fairway,” said Brad Steele, who is the National Club Association’s vice president of government relations and general counsel.
In other words, homeowners adjacent to golf courses have to accept they will occasionally encounter a stray golf ball.
“Our home is hit repeatedly,” Behar said. “Two workers on the property were hit in the past. They have come close, but thank God, nobody in my family has been hit, and that’s because we stay clear.”
The number of errant shots is very much in dispute. Quaker Ridge hired an individual to count the number of balls leaving its property; the Behars hired a private investigator to count the number of balls that landed in their yard.
According to a count by Quaker Ridge, 97 balls were hit over the property line between May 7 and June 28, 2011. That’s fewer than two per day. According to Behar, that count is off by a wide margin.
“I can’t tell you how many balls the net has stopped, but I can tell you it hasn’t made the situation livable,” said Behar, who confirmed that he did offer to sell the home to Quaker Ridge early on.
A common problem
Golf ball incursions are common in the region. Westchester is home to nearly 50 public and private courses, and most of them wind through neighborhoods. There are 11 golf courses in Rockland and seven in Putnam. Complaints do come in from neighbors, and the standard practice is to pay for broken windows or damage caused by errant shots.
“At the end of the day, it’s hard for any court to hear that kids are out playing while golf balls are coming in,” Steele said. “Clubs do have an opportunity to win these cases, but we advise them to do their best to avoid legal proceedings altogether.”
And that’s why the Quaker Ridge case is beginning to garner nationwide attention. The golf industry was hit hard by the recession and is contracting. A panel of New York state appellate court judges reversed the lower court decisions on June 18, noting that Quaker Ridge failed to sufficiently reduce the number of golf balls landing on the plaintiffs’ property, rendering it uncomfortable and inconvenient.
An injunction forced the club to move the tee box some 115 yards forward.
The appellate court also cleared the way for the Behars to seek damages for loss of property use. Quaker Ridge filed a motion to re-argue the case, suggesting the judges overlooked a number of relevant factors in reversing the decision. On Tuesday, the appellate court denied that motion and ruled against the inclusion of an MGA submission supporting Quaker Ridge and explaining that a ruling against the club would have broad implications for the community.
“We are obviously disappointed by the appellate court’s ruling, but we intend to continue pursuing all legal options to protect our rights and those of other public and private golf courses,” Friedman said.
The case now moves back to Westchester County Supreme Court, where issues such as damages will be finalized. Quaker Ridge has the option to appeal to a higher court at that point. Club officials were to discuss the matter over the weekend.
The bottom line
Quaker Ridge will not disclose the amount paid out to date for legal fees and course modifications, but numerous sources indicate the cost of this battle is already north of $400,000.
That number could increase exponentially if damages are granted.
Cohn is also representing another neighbor of a club in Westchester in a ball-incursion dispute. He declined to identify the club or the client, but he said no lawsuit has been filed.
Bonnie Briar Country Club in Larchmont was recently contacted by a lawyer, according to a member who asked to remain anonymous. And Sunningdale Country Club in Scarsdale, in an effort to deal with a recent complaint from a neighbor, has requested that members and guests club down on the 11th hole so no tee shot travels more than 200 yards.
Unless there is another reversal in court, Quaker Ridge might have to redesign a hole that’s remained largely unchanged for nearly 100 years. There is just enough room to move the primary tee box forward and right.
It’s a significant change that would alter the intended target line.
“Quaker Ridge is one of Tillinghast’s most famous designs,” said Bob Trebus, a member of Baltusrol Golf Club in New Jersey and president of The Tillinghast Association. “It would be a shame to alter his design. … That’s like painting a mustache on the Mona Lisa.”