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139-year-old agreement and a four-word phrase at the center of Wade Park legal dispute

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Posted at 5:02 PM, May 11, 2021
and last updated 2021-05-11 18:36:18-04

CLEVELAND — The Ohio Supreme Court heard arguments Tuesday morning in a case that's rooted in an agreement reached during the days of horses and buggies. The heirs to renowned industrialist, philanthropist and Wade Park's namesake, Jeptha Homer Wade, are locked in a legal dispute with Cleveland Botanical Garden over whether its operations and admissions charges violate the terms of Wade's deed to the city in 1882.

Jeptha Wade, one of the founders of the Western Union Telegraph, deeded a tract of land spanning more than 60 acres to the city in 1882 on the condition that the future park would be to the benefit of all people and open at all times to the public. Later named Wade Park, the area has become the city's cultural mecca, which is now home to Cleveland Museum of Art, Cleveland Museum of Natural History and Cleveland Botanical Gardens.

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In 2003, Cleveland Botanical Gardens issued $20 million in improvement bonds as part of a $70 million capital campaign to expand the facility and construct a glass conservatory. The nonprofit that operates the gardens later used revenue from admissions and parking fees to pay back the debt. By 2019, revenue from the parking and admissions fees was $19 million.

In 2019, a trial court judge in Cuyahoga County affirmed that the non-profit running the gardens had not infringed upon the terms and conditions of the original 1882 deed. The judge also ruled that Wade's heirs did not preserve their reversionary rights to take the property back under a state law passed in 1961. An appellate court later reversed that part of the trial court's ruling while also affirming that the botanical garden's operations did not violate the terms of the original deed.

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On Tuesday, Matthew Fellerhoff, the attorney representing Jeptha Wade's heirs, told the state supreme court justices that the heirs have spent hundreds of thousands of dollars to ensure the public's right to use the park.

"They had to do this because the City of Cleveland won't do this," Fellerhoff said. "My clients have worked with the City of Cleveland to try to ensure that the intent of Jeptha Wade's gift was followed and it all worked for the benefit of the beneficiaries -- the public."

During his oral arguments, which were done virtually because of the ongoing pandemic, Fellerhoff asserted that the garden's operating hours (10am - 5pm on Tuesdays through Saturdays and 12pm-5pm on Sundays) violate the terms of the 1882 deed because it violates one of the cornerstones of the deed in that the park "[to] be open at all times to the public."

The operating hours amount to just 25 percent of any given week. Eric Levasseur, the attorney representing Cleveland Botanical Garden, said such a strict interpretation of the deed is unreasonable.

"That is not a reference to minutes or hours on the clock for every square inch of the park being open at all times," Levasseur said. "It does not require, as the 8th District [Court of Appeals] appropriately recognized, that there be 24/7 absolute access to every square inch of Wade Park. 'Open to public use' does not require the area to be open to everybody all of the time. Furthermore, that right of access is not absolute."

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Jeptha Wade's heirs also contend that the garden's collection of admissions and parking fees do not comply with the conditions of the deed, especially now that the debt from the improvement bonds has been paid off.

"After the debt is paid, that money can go anywhere. That is part of the problem," Fellerhoff said. "It is not a park purpose. It is a Cleveland Botanical Gardens purpose. [The deed] doesn't preclude an admission charge but the admission charge that is contingent on entering the park is a problem."

The Ohio Supreme Court will decide on the case at some point over the next few months.