Kemper Memorial Controversy Has Its Day in Court;
Attorney General Sides with the School District

by Joan R. Simon & Judy Silberstein

(September 2, 2004) While a decision in the Kemper Memorial Park case (see: District Enjoined from Altering Kemper Park) is probably two months away, both sides had their day in court last Wednesday, August 25th. Appearing before Westchester County Supreme Court Justice Orazio R. Bellatoni, lawyers for the Mamaroneck School Board and Richard Cantor presented arguments concerning the proposed changes to the Kemper Memorial Park. The Attorney General’s office, as the “statutory representative of ultimate charitable beneficiaries” under New York state law, was also present as a third party in the case and weighed in on the side of the school district.

According to Bob Davis of Bryan, Cave, LLP of New York, the papers submitted by the Attorney General’s office indicated, “The proposed use in their view is consistent with the deed restriction.” He added, “The person with the enforcement responsibility agrees with us.”

”The Attorney General has taken a very disappointing position,” said Michelle Silva, attorney for Mr. Cantor. “They have come out in support of the modification of the park and that is very disappointing to many people, to say the least, including Mr. Cantor and his family.

“We were encouraged that the judge kept the restraining order in place,” she added, “because we believe that irreparable harm will be caused if the school board has the freedom to engage in any construction at this time in the park.” The board has said, and reiterated at the hearing, that they would not be modifying the park anytime soon. Only half of the funds needed for the project were in this year’s budget, and final state approval will not be sought for the project until all the funds are in hand.

Ms. Silva noted that “There was quite an outpouring of support from community groups,” at the hearing. She estimated there were about forty individuals, including members of VFW Post 1156, the Larchmont and Mamaroneck American Legions, the Larchmont Historical Society, students from Mamaroneck High School and other residents in the district. Following the hearing, members of the groups indicated that they would be reaching out to the Attorney General’s office to ask about the decision.

The Kemper controversy first moved from the debate room to the court room in late June, when the School Board filed a suit in the Westchester County Supreme Court asking for a “declaratory judgment action” as to whether the school district could proceed with a proposed reconfiguration of the Kemper Memorial Park to make room for a new varsity-sized playing field. Mr. Cantor filed a suit in opposition and on July 15 Judge Bellatoni issued a temporary restraining order enjoining the Mamaroneck School District from altering the Kemper Park. The School Board then submitted a response to Mr. Cantor’s complaint.

The oral arguments on August 25th reiterated the papers both sides had submitted to the court. Mr. Davis stressed that the “basic issue is the consistency of the proposed use with the deed restriction.” He characterized the issue of “whether the use is consistent with the deed,” as the “only substantive one.”

Celia Felsher, president of the School Board, commented, “We’re happy that this is moving forward because we are anxious to have a resolution that lets us, as well as the community at large, know for certain the district’s rights and responsibilities with respect to the donated land and the proposed changes.”