Clark Family Speaks Out

Wednesday, February 8, 2006

Judy A. Neville
First Selectman, Town of New Canaan

Janet Spaulding-Ruddell
Connecticut Assistant Attorney General

John Cannavino
Special Attorney to the Town of New Canaan

Dear Ms Neville, Ms Spaulding-Ruddell, and Mr. Cannavino:

On behalf of the Clark family, we wish to express our great appreciation for the very kind and constructive meeting held Monday with members of our family, concerning the 1956 gift of land to the Town of New Canaan by our grandmother, Dorothy Q. Pardee Clark, in memory of her late husband Harold Benjamin Clark, our grandfather. As you indicated in your press release, both were ardent conservationists, a tradition the Clark family has worked hard to uphold. We are, therefore, extremely pleased at the Town’s decision to cancel the proposed sale of this land.

We also strongly endorse your efforts to vacate the Superior Court case that permits the sale of this land under the doctrine of cy pres. We feel strongly that there is, in fact, a very legitimate Town use for the land, namely to hold it and to use it as a woodland preserve, a wonderful resource for all members of the community. Indeed, the New Canaan Town Plan expressly mentions the need for open space. There is no doubt in our minds that this was our grandmother’s preferred use of the land and would be the best way to honor the memory of her late husband, our grandfather, who had a lifelong devotion to nature and conservation. We are quite worried, furthermore, that such a precedent may greatly discourage future donations of any sort, including natural resources, out of concern that the donor’s wishes may not be honored.

Finally, we are very encouraged by the efforts a number of the citizens of the Town New Canaan to create an organization to plan, manage, and fund this special place, as a woodland preserve. Towards that end, and in recognition of this gift of land, we strongly endorse efforts by the Town government to formally establish it as a woodland preserve, to be held by the Town, and used as such, in perpetuity.

Signed,

Benjamin Clark Locke
Benjamin Schuyler Clark, Jr.
Charlotte Clark deBresson
David Pardee Melville
Elizabeth Van Cortlandt Clark
Ella Lowell Clark

communicating with the clarks

The Clark Woodland Preserve Coalition will be holding an education forum in the main room at Waveny House at 7 p.m. on Wednesday February 8th. Town Council will meet at 7:30 p.m. at Lapham Community Center, but the public hearing on the Clark property was cancelled, after Judy Neville announced yesterday that she was withdrawing the option to sell the Clark property.

The following e-mail was sent to Benjamin Locke, Ben Clark, Ella Clark, Tibby Clark earlier this morning.

Dear Ella, Ben, Tibby and Ben,

In 1951 before I was born, my parents moved to New Canaan to a house on
Luke's Wood Road. I believe that at that time New Canaan was
considered to be quite woodsy, which appeared to be a significant
contributing factor in the Town's appeal for families taking up
residence here.

After high school I moved out west to attend college. After receiving a
Bachelor of Science in Environmental Science, I moved to Santa Barbara,
which was an environmentally friendly community. There I integrated my
environmental background into politics and (land use) planning.

After moving back east to enroll in a chef's training program in
Manhattan in 2001, in early 2002 I took up residence in New Canaan,
where I had already embroiled myself in a campaign to protect a wooded
buffer between N.C.H.S. and South Avenue from being despoiled by a
school office administration building.

After winning that battle, I then advocated for open space townwide. I
strongly disagreed with Winsome Farm acquisition proponents that the
Clark property should be sold to help buy Winsome Farms. I supported
the acquisition of Winsome Farms, but not at the expense of the Clark
property. So I publicly called for a dedication of the Clark property
as parkland.

More recently I decried a proposal by some to park school buses on the
property. I felt this proposal was disrespectful, insensitive and
impractical. At the same time I realized dedicating the Clark property
as parkland was not strong enough to properly protect it.
So at first I called for a dedication of the property as a Town Forest.

Recently, I realized I had been blindsided when I learned that Judy
Neville had taken steps to enable the Town to dispose of the property.
I wrote three letters to the New Canaan Advertiser calling for its
protection. In the meantime I have been joined by an effective and
passionate team of open space advocates. I helped draft a petition to
circulate among town residents and in that petition included language
that it dedicated as a woodland preserve. A week ago I set up a blog -
http://clarkwoodlandpreserve.blogspot.com. So it is ironic to learn
that your family had also donated land in Pound Ridge, known as the
Clark Preserve!

I am writing to express my appreciation to your grandmother for her
foresight to donate the 23-acre property to the Town of New Canaan. I
am thankful that you stepped up to the plate to thwart the sale of
Dorothy Clark's property. I am also grateful to members of our Clark
Woodland Preserve Coalition who tracked you down.

There is one remaining unfufilled goal and that is for the property to
be dedicated by Town officials in memory of Harold Benjamin Clark as
the Clark Woodland Preserve or Harold Benjamin Clark Woodland Preserve.
Our appreciation for this property will grow over time as undeveloped
woodland becomes scarcer in New Canaan.

I am hoping you will help achieve this goal by publicly requesting that
this dedication take place. To assist you, Tanya Bickley suggested I
draft a statement, which I have attached.

Thank you,

Sincerely,

Richard M. Stowe

draft statement:

The Clark heirs are pleased that First Selectman Judy Neville has withdrawn the option of selling the Clark property. With the option of selling Dorothy Q. Pardee Clark’s property off the table, we hope that further action to will be taken by New Canaan’s elected officials to dedicate the property in perpetuity as a woodland preserve and memorialize it in honor of her late husband Harold Benjamin Clark. The family believes town use of the property as a woodland preserve would best fulfill the wishes of Dorothy Q. Pardee Clark as both she and Harold Benjamin Clark were ardent conservationists and he served on Board of Trustees of the Museum of Natural History.

photo: Richard Stowe
written by: Richard Stowe

the clark decision

New Canaan Advertiser, New Canaan, Conn., Thursday, February 2, 2006
(sections of the letter below were printed on page 9A)

Law is for the people, not the lawyers

The First Thing We Do, Let’s Kill All The Lawyers.

So reads the framed Shakespearean quote that a lawyer-friend gave me when I graduated from law school – a reminder that the law is for the people, not the legal practitioners. But, apparently, the lawyers in the recent action involving the Clark Property (Town of New Canaan v. Attorney General Richard Blumenthal) were not bothered by similar concerns as they cruised to a mutually agreeable resolution of the issues – removing the restrictions of Dorothy Pardee Clark’s deed of gift to New Canaan, and permitting the sale of the donated property – with little obvious regard for the consequences for the people of the State of Connecticut and the residents of New Canaan, their respective clients,.
I believe (will explain how) the court in Clark reached an erroneous conclusion, totally misreading Mrs. Clark’s granting deed and incorrectly applying the law. Once you get past the odd foreign phrases that some lawyers find so appealing, the relevant legal concepts are quite simple. I go into them so that readers can more fully appreciate the folly of the fairly extended series of actions that have been taken (at some expense) in order to position the Clark Property for sale.
The Clark decision rests on the legal concept of cy pres, also known as the doctrine of approximation. It could as well be known as the doctrine of frustrated purposes. The gist is that when a donor’s specific instructions regarding the use of a charitable gift cannot be followed (due to illegality, impossibility or impracticability), a court may revise the terms of the gift to realize, as closely as may be, the donor’s general charitable intent.

Using this doctrine, the reasoning in the Clark decision runs something like this:
-Mrs. Clark gave the property to the Town for its use
-The Town determined that the property is unsuitable for any of the Town’s specific needs, e.g., school, cell tower, bus parking lot

Therefore: The Clark deed should be revised and the Town should be permitted to sell the Clark Property and use the proceeds to pay down the debt on the recently purchased Irwin property

This has “curb appeal,” but not really any substance, once the facts are examined. Let’s start with the Town’s acceptance of Mrs. Clark’s gift: "The Town accepts as a gift from Dorothy Q. P. Clark . . . in memory of her husband Harold Benjamin Clark,...the same to be held and used by the Town for Town purposes including schools, parks or other public purposes.” [Special Town Meeting Resolution, adopted December 12, 1956]
As time passes, however, the Town begins to look the gift-horse in the mouth, finding that the property is not quite as functional as hoped and, with other more attractive parcels available, why not arrange some sort of trade? The problem was that the only legal theory allowing this action, cy pres, required that the property be unusable for the purpose specified in the gift. This did not fit the Clark deed since Mrs. Clark did not impose any limitation on the property’s functional use; she left it to the Town’s good faith and judgment to determine how to use the property consistent with a memorial
Not having a frustrated use upon which to apply cy pres, the lawyers found a solution in declaring the property to be without any use whatsoever. This, of course, requires us to over-look the anomaly that, in the view of the Town, the property is totally useless in the hands of the Town, but worth millions in the hands of a developer. It also requires turning a blind eye to the possibility of holding the property, just as it is, as open space, or for walking trails, etc., especially now that the State and the Town have voiced their commitment to preserving open spaces. And, in fact, the Clark Property has been so used for the last 50 years. In the words of Glen Chalder, an executive from Planimetrics (which helped draft the Town Land Use Plan), “[The Clark Property was designated as ‘open space’ in the plan] because it was . . . serving an open space function.” (New Canaan Advertiser, 1.22.05)

Manifestly, Mrs. Clark’s intent was that the Town hold (not sell) the property as a memorial for her late husband, something clearly legal, possible and practicable. Except for the acceptance of the gift, which was promptly given, it required no funding or any other action.

There is no precedent for applying the cy pres doctrine to a grant that is expressed in such general, flexible terms such as those in the Clark deed. That the Clark Property is not useful for the Town’s property needs (school, cell tower, bus lot, etc.) did not justify altering the terms of her grant. Under such an interpretation, the application of cy pres will depend on the needs of the recipient, not the intent of the donor. This is not the law.

Mrs. Clark may get stiffed, and the legal decision is not something to be proud of, but, you may ask, “So what?” Well, Mrs. Clark’s was another example of New Canaan residents’ generosity to the Town, a generosity that may be less forthcoming unless the Town Council votes against the proposed sale of the Clark Property. After the Clark court action, Town residents, already concerned about the abuse of charitable gifts to the Town and the precedent being set with the Clark Property, may hesitate to donate land to the Town.

Attorneys now have to advise clients of new pitfalls in charitable donations in Connecticut, and especially gifts to the Town of New Canaan. Furthermore, applying cy pres to the Clark deed invites other recipients of charitable gifts with similar broad, flexible grants to use the Clark decision as a basis for arguing that they also have a right to ignore inconvenient restrictions. At the very least, donors will have to be more specific about the use of their donated property, which is hardly a victory for municipalities and non-profit organizations, which typically receive charitable gifts.

One of the interesting aspects of this matter is that it started out as a local property issue. But, having gotten the State’s judicial system and its highest legal officer involved, the Clark matter has a life and an import of its own. Selectman Johnny Potts has already contacted Attorney General Blumenthal to express a number of concerns, including the fact that the AG’s office did not give the selectmen a heads-up about the action, which apparently was commenced on First Selectman Judy Neville’s initiative. Then there are the questions about the disclosures made in connection with the Irwin Property referendum.

No one has a crystal ball, but it is hard to see a future without additional public scrutiny of this affair and the actions incidental to it, including the actions of the Town Council at its forthcoming meeting. There has been some thought given to creating a website for the posting of related information. And some have suggested that the NY Times might find this an appropriate story for its Connecticut section, or maybe a subject for an article in the Real Estate Section, “So You Want To Live in New Canaan.”

It seems to me that First Selectman (Judy) Neville (and Judge Robert Callahan, who issued the Clark decision) were not well served by the lawyers in this matter. Mrs. Neville, we assume, acted in good faith trying to expand options regarding the use of the Clark Property for the benefit of residents. Her lawyers and the Assistant Attorney General, however, should have advised her that the cy pres doctrine applies only when there are no other options.

The Town Council can put a fitting end to this bizarre episode by voting against the sale of the Clark Property at its forthcoming hearing, and by resolving to apply Mrs. Clark’s deed stipulations regardless of the court decision. This is the right thing to do, and it would help restore a little trust in New Canaan government. (Unlike Judge Callahan, the Town Council will have had an opportunity to consider a fairly complete set of facts and opinions.) Attorney General Blumenthal also has an embarrassing precedent to deal with. He could address this by issuing an opinion disavowing the result in the Clark case.
Residents are invited to express their views during the hearing, to be held at 7:00 pm on February 8, 2006 (Lewis Lapham Community Center Auditorium at Waveny Park). (Editor's Note: No Vote is scheduled.)

photo: Richard Stowe
written by: Brad Powell

league of women voters speak out

Official League of Women Voters of New Canaan position on open space:

5. Open Space: The League of Women Voters of New Canaan strongly recommends that open space needs be addressed by the Town now. The semi-rural character of New Canaan is important to our quality of life. Current 2 and 4 acre zoning is inadequate to preserve the sense of open space in our town. Therefore, the Town should actively pursue all opportunities to acquire new public lands through legitimate negotiations with property owners. When appropriate, the Town should collaborate with private agencies to acquire open space. The LWVNC also recommends that the Town take the necessary steps to preserve and manage the public lands already held by the Town. Zoning regulations should reflect the desire of the Town to keep its semi-wooded character; they should be strengthened by legal sanction and enforced by Town officials. The Town should have a long-range plan and the personnel necessary to accomplish these purposes.
Source: http://www.lwvnewcanaan.org/Positions.htm

League of Women Voters of New Canaan letter written on January 30, 2006 and published in today's New Canaan Advertiser

Dear Editor

The League of Women Voters of New Canaan (LWVNC) can NOT support the proposal to sell the Clark property to off set the increased taxes resulting from the Town’s acquisition of the Irwin Property. LWVNC has held the position for five years that” The semi-rural character of New Canaan is important to our quality of life. Current 2 and 4 acre zoning is inadequate to preserve the sense of open space in our town. Therefore, the Town should actively pursue all opportunities to acquire new public lands through legitimate negotiations with property owners”
When the most recent Town Plan for Conservation and Development was written in 2003, only 6% of the total land areas in New Canaan was dedicated to open spaces such as parks, school areas, non recreational open space and public nontaxable open space (e.g. lands owned by the Audubon Society and the New Canaan Land Conservation Trust) The League supported the Town’s acquisition of the Irwin property since there are only a few large parcels of privately held, undeveloped land left in New Canaan that could be purchased to increase the amount of land dedicated as open space.
Selling the Clark Property is regressive and contrary to the public’s expressed views that the Town should acquire more open space. In the spring of 2001, our membership conducted a town wide Open Space Survey. According to the results of that survey, “Open space ranks as high as education in importance for New Canaan residents in terms of initiatives the Town could undertake with “additional funding.” While respondents varied in the amount of tax increase that would support, 73% expressed a willingness to pay higher taxes to acquire more open space. If the Clark property is inaccessible and does not contribute to the Town’s Plan for Conservation and Development, perhaps other lands could be purchased with the sale of this property or a fund created for this expressed purpose. Such a policy could be supported by the League and would meet the expressed desires of the many residents who participated in the League’s Open Space Survey.
Call or email your Town Council members and urge them NOT to reduce the Town’s small percentage of dedicated open space. Tell them Not to agree to sell the Clark property to tweak our taxes.

Ruth Laird, League of Women Voters of New Canaan

photo: 'Clark Holly' by Richard M. Stowe

early morning trains

I went down to the New Canaan train station this morning to meet commuters boarding the 5:31 a.m., 6:21 a.m. and 7:09 a.m. trains. Signature gathering was easy. Saw Bill Eydt, who said he had downloaded the petition and was collecting signatures. Tanya Bickley arrived at 6:00 a.m. Polly Perkins signed the second petition I was circulating.

When I returned home, I learned in an e-mail from Marea Dumbauld that a letter has been drafted by Sally Halstead and Ruth Laird, the League of Women Voters in which they chide the First Selectman's proposal to sell the Clark property. Then they ask members to contact Town Council members to "urge them not to reduce the Town's small percentage of dedicated open space. Tell them Not to agree to sell the Clark property to tweak our taxes. "

photo: Johnny Potts
written by: Richard M. Stowe

coalition members at work

Wake up call from Sandra Ross this morning. She shared with me what she is researching.

An afternoon e-mail Brad Powell revealed his legal opinion about the role a charitable donor's heirs plays in a situation where the donor's specific instructions cannot be met.

Last phone call of the evening from Tanya Bickley. She shared feedback she's received from commuters at the New Canaan train station.

In a late night e-mail sent from Houston, Texas Skip Hobbs wrote about Dorothy Pardee Clark's family.

photo: Brad Powell
post written by: Richard M. Stowe

telephone, telephone

Worked the telephone today. Reached out to a number of people, who appreciated the effort we are making to enable them to voice their opposition to the sale of the Clark property. Left a message with Arthur Potts, President of the New Canaan Land Conservation Trust.

Those I spoke to included Nina Brown, Jens Risom, Lyn Chivvis and Donal O'Brien - former National Audubon Society chairman and former chairman of the Connecticut Council on Environmental Quality.

Afternoon bicycle ride to Connecticut Avenue in Norwalk was damp, but provided some exercise. On my way back into town I saw Jack Trifero at Gramophone Shop, who asked me directions to get to the Clark property.

In the evening I called Paul Fitzpatrick, tour director for inaugural Tour de New Canaan - he said he picked up a flyer from an older gentleman (Hector Lopez) at the Talmadge Hill train station. Next I spoke with Sim Attwood and Irene Barrack, who expressed a genuine interest in visiting the Clark property. I e-mailed photos I took of the property to her.

photo: 'Mountain Laurel' by Richard M. Stowe
post written by: Richard M. Stowe