Litigation Update: Valley Forge Golf Course and The Barnes Foundation

The Valley Forge Golf Course in King of Prussia, PA (Upper Merion Township) and the Barnes Foundation in Merion, PA, have been the subjects of long-running litigation for decades, “since the mind of man runneth not to the contrary.” One has been resolved finally, it seems, and the other may be approaching final resolution.

(a) The Valley Forge Golf Course. In the early 1950’s when the Pennsylvania Turnpike and the Schuylkill Expressway were installed, the confluence of them with U.S. Route 202 and later U.S. Route 422 very quickly transformed King of Prussia from a sleepy farming community to a center of commerce and industry. Development was rapid and property values skyrocketed.

Lying almost on the intersection of the four highways, the Golf Course is a lovely tract of 135 rolling acres. In 1966, the Township, recognizing that vacant land was rapidly disappearing, attempted to acquire the tract for recreational purposes by condemnation. The owners challenged the action, and ultimately the Township abandoned the effort.

Thereafter the owners have attempted fruitlessly, until now, to rezone the tract for office building development. Challenge after challenge has been unsuccessful for a variety of reasons. In the meanwhile the tract’s value relentlessly escalated. Recently, the Pennsylvania Supreme Court declared the existing zoning classification (“AG -Agricultural” which would permit approximately 70 to 90 single family residences on the site) to be improper.

There were two curious aspects to the ruling. The Court ruled that the “AG” classification resulted in “spot zoning” and as such was illegal. This seems to be a significant change in the law; previously tracts which were deemed to be “spot zoned” were small (perhaps one-half to two acres) sites, usually zoned for residential use in the middle of several industrial or commercial sites. The courts have ruled that a tiny tract in a sea of incompatible uses could not feasibly be developed residentially; the result would be a court-mandated change in the zoning.

The golf course, however, contains 135 acres; and while there are several office buildings in the immediate area, directly across Route 422 (which is adjacent to the tract) are the relatively up-scale Glen Hardie apartments, and adjacent to them are very expensive single family properties. So, the tract is neither small nor totally isolated; it is likely that large single family homes could be built feasibly upon the site.

The other unusual factor involves former Justice William H. Lamb, who is an active, well-recognized zoning attorney who served only one year on the Supreme Court. It turns out that Mr. Lamb represented the owners of the tract in the early 1980’s when an unsuccessful rezoning effort was made. Not only did then Justice Lamb not recuse himself (a somewhat surprising position) because of his earlier representation, but he wrote the opinion. After the ruling, the court was asked to reconsider its decision because of Justice Lamb’s previous involvement; again, it refused to do so, and apparently the way is clear for development of this site.

(b) The Barnes Foundation. Though it has a remarkable art collection recently valued at between $6 and $30 billion, the Barnes Foundation has struggled financially for years. Because it is located in a neighborhood of large old homes and has limited on-site parking facilities, the institution has been extremely limited in the number of people who may attend and is unable to pay its bills.

Recently the Pew Foundation and others have pledged $150,000,000 to build a new home for the collection on the Benjamin Franklin Parkway in Philadelphia where it would be in a friendly neighborhood nestled among eight other art and science museums, making it possible for vastly increased audiences to view the collection. As a part of the proposal, Pew asked that it be given two seats on the Barnes Board of Trustees, a move that would reduce Lincoln University’s membership on the Board to less than a majority.

The proposal has stirred a passionate debate among art scholars, some who say Dr. Barnes’ will should be sacrosanct, and the collection should not be disturbed; others argue the art world should be given greater access to the collection and that the alternative to the move is almost inevitably bankruptcy for the Barnes. The debate has landed in the lap of Judge Stanley Ott of the Montgomery County Orphans’ Court who recently deferred a final decision until the proponents of the move present him with more detailed evidence with detailed financial projections. He ordered the Trustees to consider liquidating certain of its assets to create an endowment which would support the Barnes if it were to remain in Merion; he also asked for a pro forma projection of its operation if it were to move to the Parkway.

Some argue that even a partial liquidation of the Barnes’ assets would be a tragedy and that there’s a real risk in ten years the financial crisis would resurface. Others feel that Dr. Barnes would be horrified at this thought of moving his collection and that its special qualities that make it so unique would be lost forever in the move.

Judge Ott in his initial ruling has left plenty of room for conjecture. On the one hand he agreed to increase the size of the Board and also stated that he sees nothing in the will that absolutely proscribes the move; on the other hand he made it amply clear that he will not permit the move frivolously and that he must have convincing evidence that the move is both financially feasible and in the best interest of the collection’s preservation before he will sanction it.

A final ruling by Judge Ott will probably be made in the next four to six months.

— Ken Butera