McCloskey Brothers Inc. had owned the 3,000-square-foot property at 616 W. Connell Ave. in Stillwater. It includes a 631-square-foot rental house and a garage.

The property is the last of 87 parcels OSU wanted for the first phase of its Athletic Village, a collection of athletics facilities to be built north of the university's football stadium.

OSU has also bought or negotiated the purchases of 178 of about 180 properties in the second and final phase, the university's spokesman Gary Shutt said.

OSU has used eminent domain -- the legal concept under which private property can be taken for public use -- only on the McCloskey property, after purchase negotiations failed.

Payne County District Judge Donald Worthington said, "The constitution and statutes clearly . . . grant the regents of Oklahoma A&M Colleges (OSU's governing board) the rights of eminent domain."

Land acquired by eminent domain must be used for a public purpose, and the Athletic Village meets that requirement, Worthington ruled. He also decided that OSU's negotiations to buy the land were in good faith, which McCloskey Brothers had contested.

McCloskey

After the appeal is resolved, the McCloskeys and OSU have asked for a jury to determine how much OSU will pay for the property. Kevin McCloskey said he and his brother wanted $90,000 to $100,000 -- enough to buy a comparable rental house close to campus.

The McCloskeys paid about $25,000 for the property in late summer 2005, OSU offered them up to $62,000 and court-appointed commissioners valued the property at $84,000.

Kevin McCloskey said OSU based its four offers on a property appraisal that considered "comparable" properties that were much farther from campus than the McCloskeys' land is.

Gary Clark, a lawyer for OSU, said the university did not have the property reappraised, as the brothers requested, because in the two or three times it reappraised land in the Athletic Village area, the values stayed about the same. Clark is the general counsel for the OSU Foundation, which negotiated on behalf of OSU.

Kevin McCloskey said he and his brother considered OSU's offers too low to even consider.

"You start off offering someone a Timex for a Rolex -- that's not really negotiation," he said.

Randall Elliott, the attorney for OSU's board of regents, said: "This negotiation did not fail because we failed to act in good faith. This negotiation failed because the McCloskeys failed to participate in the negotiation process."

Kevin McCloskey said the outcome of the case would show whether it's OK for state laws to be broken.

The McCloskeys' attorney, Harlan Hentges, said: "The dollar amounts involved are pretty small. The principles involved are pretty large."

Hentges said he wasn't sure who will be using the land: a public university or private nonprofit organizations, such as Cowboy Athletics Inc., which paid for the development.

Elliott said OSU was the beneficiary of everything those groups do and eventually would also take possession of the facilities and land the groups develop.

Hentges said he also was not convinced that OSU athletics constitutes a public use of the land, considering that in general, tax money can't go to athletics and considering that OSU's purpose is teaching, research and extension.

In addition, state laws don't specifically give OSU's board the power of eminent domain that would apply in this situation, he said. Eminent domain rights aren't implied but are contained in laws that are strictly construed, he argued.

April Marciszewski 581-8475
april.marciszewski@tulsaworld.com