Representing four alleged family members of park founder Martha Duncan, attorney John D. Tallman has filed a suit claiming the park must be returned to the heirs. The lawsuit invokes a “reverter clause” in the deed that states the property must be returned to the heirs “in case the (City) Council or trustees shall neglect or refuse to carry out good faith all of the terms and conditions” of the deed.
When the park was established in 1913, a three-member board was established to hold Duncan Woods in a “forever trust” as a public park. When two trustees stepped down in 2013, the city set up an ordinance to continue operation of the park, overseen by a five-member board appointed by the mayor.
The Grand Haven Area Community Foundation holds the money for the Duncan Memorial Park trust, and the bookkeeping is channeled through the city, which City Manager Pat McGinnis said is done to provide transparency.
“It’s really a tortured stretch to say it’s anything but the correct way to go about things,” McGinnis said.
The lawsuit accuses the city of violating the intent of the Duncan Park Trust, including its “exclusive supervision, management and control” of the park, and its ability to hire and fire employees and fill trustee vacancies. It also states that the City Council can remove its appointed trustees.
McGinnis said the city has maintained the original intent of the park’s founder.
The city was served with the lawsuit Wednesday afternoon. City officials have submitted the filing to the city’s insurance provider to assign legal counsel, McGinnis said.
“We believe we followed all proper procedures when we had the trust reformatted,” McGinnis said. “I’m confident we’ll have competent legal counsel that will preserve the status quo and defend the city’s position.”
The plaintiffs claiming to be heirs of Martha Duncan are Jeffrey, Jarold and Cassandra Lapinske, all of Wisconsin; and Alyssa Mortorano, of Arizona.
McGinnis said city officials were not aware there were living heirs of Martha Duncan in 2013 when it assumed responsibility of the park. The plaintiffs have not been verified as heirs, and this question may be raised during the legal process, he added.
Tallman has spearheaded numerous lawsuits against the City of Grand Haven since 2010, after 11-year-old Chance Nash died from injuries sustained when he struck a tree branch while sledding at Duncan Memorial Park in December 2009. The hill in question was on the back of what is considered the “normal” sledding area at the park, but Tallman, representing the victim’s family, claimed the city was negligent in maintaining the woods.
Tallman and his client continued to pursue lawsuits against the city through 2017, when the Michigan Supreme Court chose not to consider the requested appeal of an Aug. 10, 2017, state appeals court judgment. In that decision, the appeals court agreed with a lower court’s decision to throw out the lawsuit.
McGinnis said the series of lawsuits and the restructuring of the trustee arrangement were coincidental and unrelated.
The Duncan Woods property features about 40 acres of forest between Lake Forest Cemetery and Sheldon Road. The park is located in a single-family residential district in the city’s Zoning Ordinance, according to McGinnis. Under the existing deed, it cannot be developed from a natural site, but if the deed were altered or rescinded, there is a potential it could be sold for development.
If the park were put up for sale, McGinnis said the city may attempt to buy back the property to preserve it.
“I don’t know what they might be able to do with it,” he said.
The plaintiffs are requesting a trial by jury in the U.S. District Court Western District of Michigan. The lawsuit includes counts for violating constitutionally protected rights at both the state and federal levels.
The Grand Haven Tribune has contacted Tallman for comment on the lawsuit, and was awaiting a response as of late Wednesday afternoon.