An Elkhorn man has run out of mulligans.
Eight years ago, Eric Marsh dropped jaws when he began dropping about $350,000 into his property — eventually installing tee boxes, a putting green, boulders, fire cauldrons, a sport court and an infinity-edge pool on his lot and an adjacent lot behind his house near 196th and Emile Streets.
Four years ago, the Fire Ridge homeowners association filed a lawsuit — claiming Marsh’s development strayed from his approved plans and violated the neighborhood’s covenants.
Last year, Douglas County District Judge Kim Pankonin sided with Fire Ridge, ordering Marsh to remove several elements of his wonderland.
The 47-year-old software developer then asked the golf gods — er, the Nebraska Supreme Court — to overturn Pankonin. The high court refused, siding with the homeowners association.
Now Marsh — who once declared that the dispute would end in “total submission” by Fire Ridge — has yet to accept defeat or surrender his backyard features.
That led the homeowners association to go back to court last week and request sanctions, noting that Marsh has done nothing to bring his property into compliance in the 90 days since the Nebraska Supreme Court ruled.
Judge Pankonin ordered Marsh to appear in December and answer why he hasn’t followed her order. Marsh could face a contempt-of-court action — and risk further fines, even jail time, if he doesn’t comply.
So is Marsh willing to go to jail over his man-land?
“Hell, no,” Marsh said. “I’m a law-abiding citizen. I’m just a stubborn citizen.”
Marsh said he has two figurative “bullets left in the chamber” — two golf balls up his sleeve — that he will use to continue to fight. He declined to reveal them.
“I plan to do what I absolutely have to do. I’ll stand my ground as long as I can.”
The long-standing dispute is perhaps the most expensive and extensive version of the kind of neighborhood disputes that sometimes wind up in court. Neighbors have done battle over everything from backyard chicken coops to driveway basketball hoops. Sometimes, they have settled — a privacy fence solved the chicken coop case. Sometimes, the homeowner has prevailed — as when a judge ruled that a homeowners association had unfairly picked on a mom who put up a hoop for her sons.
But no neighborhood court squabble has been quite like Fire Ridge vs. Marsh. The court case has involved depositions over pin positions; has gone all the way to the state’s highest court, costing tens of thousands of dollars in legal fees; and has seen Marsh seek a protection order over a board member’s quip that officials should chip dozens of golf balls into his pool.
After a three-day trial in 2015, Judge Pankonin allowed Marsh to keep his pool, basketball court, tether-ball pole and hog-roasting pit, among other items. But the judge ordered Marsh to do more than a handful of things to bring his property into compliance with neighborhood covenants: remove artificial tee boxes from his side yard; remove two giant flagpoles that a neighbor said were noisy; replace an artificial turf putting green with grass; plant trees and install sprinklers under his new grass.
Marsh appealed the case to the Nebraska Supreme Court — relying in part on the argument that Fire Ridge officials had failed to enforce neighborhood covenants on other homeowners.
Nebraska’s high court rejected that argument. While noting that its ruling was not a precedent, the Supreme Court nonetheless said that neighborhoods have some leeway in enforcing covenants that are designed to preserve a neighborhood’s integrity.
The high court agreed that “covenants were not always enforced to the very letter and detail” in Fire Ridge.
However, the court ruled: “Major violations were consistently and reasonably enforced when the members knew of them. The evidence also showed there had not, in the past, been a violation of the scope or nature at issue here.”
The court concluded: “We have recognized that a homeowners’ association’s failure to enforce slight deviations from the covenants does not stop the association from enforcing more flagrant violations.”
Marsh is incredulous over the trial court’s ruling — and the high court’s upholding of it. He noted that the homeowners association didn’t ask for his putting green to be removed until the last day of trial.
“Come out and look at my place,” he said. “I haven’t heard anyone say that this is anything but well done.
“Tearing the putting green out — there’s no way it will look as nice as it did before. So you’re going from something that is aesthetically pleasing to something that is not. ... It’s insane.”
Marsh said the amount of money spent over the court case is equally insane. Marsh said he has racked up $40,000 in legal fees; he estimated that the homeowners association has spent $70,000 to $80,000 in legal fees.
Mark Ringsdorf, a homeowners association board member, said he “wouldn’t dispute that” estimate, though he didn’t know an exact amount. Ringsdorf estimated that roughly half of the attorneys’ fees were covered by insurance.
A legal battle became inevitable when Marsh wouldn’t comply with covenants prohibiting large flagpoles, artificial grass and unapproved developments, Ringsdorf said.
After Fire Ridge sued Marsh, he countersued several of the board members, arguing that the covenants were selectively enforced and thus null and void.
“The bottom line was, when he (counter)sued us and said our covenants were invalid, there was no way we could back down,” Ringsdorf said. “We would really have had an issue if we had just ignored our covenants.”
Omaha attorney David Welch, who represented Fire Ridge, said he and his firm have represented neighborhood associations for more than 30 years. This battle was, by far, the most costly and time-consuming, he said.
Fire Ridge officials “expended a considerable amount of time and money to make sure they are able to enforce their covenants,” Welch said. “It’s the last thing they wanted to do, but it was kind of like the board was pushed to the line and had no choice.
“The whole thing has just been very unusual. It’s all kind of new ground.”
Ten years after he bought the lot adjacent to his home, five years after he finished it, Marsh is standing on the same ground. He remains mystified. He said he met with any neighbors who had concerns about his project. One neighbor complained that certain lights were too bright. He lowered them.
He suggested that the neighborhood’s lawsuit was more about power than protecting property values — more about Ringsdorf’s and another board member’s distaste for Marsh.
“This is not about how my yard looks,” Marsh said. “This is about Mark Ringsdorf trying to win a battle.”
Ringsdorf said the dispute with Marsh “is not personal.” He said he and his fellow volunteer board members simply wanted to preserve the neighborhood’s character and protect its approval process for projects. Otherwise, neighbors could embark on all kinds of unapproved projects.
Ringsdorf has said Marsh’s development was more in line with something you would see on an acreage. Not Fire Ridge, which has sizable houses on relatively small lots.
“I think (Marsh’s) strategy was to run up legal fees to see if we’d give in,” Ringsdorf said. “We couldn’t do that. This was a significant case for Fire Ridge.”
Ringsdorf said the legal battle, though costly, didn’t require any special assessments or dues. He said Fire Ridge homeowners will now start seeing more savings, more activities and hopefully fewer legal bills.
Just last week, Ringsdorf said, he sat in court and “felt a little bit sick to my stomach” that the case against Marsh still was taking up the judge’s time. Next on her docket that day: a sexual assault case.
“It didn’t feel right to me,” Ringsdorf said. “I think it went too far, as it is. It’s definitely time to move on.”