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Montgomery County and a group of art students, alumni and neighbors of the Barnes Foundation are seeking standing in order to relitigate a judge’s 2004 decision allowing the foundation to move its $6 billion art collection to Philadelphia’s Museum Row. In separate petitions, Montgomery County and the group seeking standing are asking Montgomery County Common Pleas Judge Stanley R. Ott to reconsider his Dec. 13, 2004, order allowing the Barnes Foundation to depart from Dr. Albert C. Barnes’ charitable bequest requiring that the Barnes Foundation stay in Lower Merion and to construct a Philadelphia gallery to house the collection. The Barnes’ world-class art collection includes 181 works by August Renoir, 69 works by Paul Cezanne, 59 works by Henri Matisse and 46 works by Pablo Picasso. The petitioners argue that In re The Barnes Foundation, a Corporation should be reopened to bar the move of the art collection and to consider a financing proposal proffered by Montgomery County to help the Barnes Foundation afford to remain in Lower Merion. The petitioners said in court papers that there have been significant changes in circumstances that warrant the case being reopened, including a zoning change that would allow more visitors and bring more revenue to the cultural site and Montgomery County’s offer to buy the foundation’s land and buildings and to lease the real property back to the foundation until the foundation can pay back the bonds that would be used to finance the deal. The Barnes Foundation argues that Ott’s 2004 orders were a final decree, but the petitioners say the order can be reopened to consider changed circumstances. The Barnes Foundation also argues in its Oct. 16 preliminary objections to the petition to reopen proceedings that the petitioners do not have standing to intervene and that the attorney general represents their interests. The group of art students, alumni and neighbors do not have standing, the Barnes Foundation argued, because Barnes students were denied standing to intervene in the original petition and were only given amicus curiae status, according to court papers. The Barnes Foundation also objected in its preliminary objections to Montgomery County’s argument that it has standing in order to “nurture the economic welfare of its citizens” by keeping a cultural gemstone within the county. The county’s argument advances an unprecedented theory of standing that would allow any locality to intervene in court proceedings involving entities operating within a locality’s jurisdiction, the foundation argues in court papers. Ralph G. Wellington of Schnader Harrison Segal & Lewis, an attorney for the Barnes Foundation, said that while the petitioners feel passionately, it does not give them the legal right to intervene. “The law has just been repeatedly clear. When you’re dealing with a charitable enterprise, a charitable organization, that organization certainly has standing to seek to have the court review its procedures, which is exactly what the foundation did” in its original Sept. 24, 2002, petition seeking leave to move the gallery, Wellington said. “The other party that has standing is the Attorney General’s Office, which is deemed by the law to have standing to protect the public interest.” Carolyn Tornetta Carluccio, a county attorney with the Montgomery County Solicitor’s Office, said the county has a “special, direct and immediate” � and distinct � interest from the attorney general in Barnes’ charitable trust. That special interest, she said, includes finding a financial solution for the foundation’s woes that would not vary from Barnes’ indenture that his art collection be tied to his estate and in keeping the museum in Montgomery County because of the jobs and tourism dollars that the gallery brings to the county. “I think our standing argument is strong enough to give the judge pause,” Carluccio said. “I think we have a realistic chance of getting standing in the case.” Phyllis W. Beck, the general counsel for the Barnes Foundation, counters that the foundation’s “gorgeous” building, gardens and horticultural center, as well as the archives, will remain in Lower Merion, but that the cost of maintaining such a valuable collection can only � as Ott found in his 2004 ruling � be maintained with relocation to Philadelphia and access to the city’s foundations and art community. The student and neighbor petitioners also argue that the question of standing is so “directly enmeshed” with the case’s merits that Ott can’t rule on the issue of standing until later. “In our view, the issue of the new evidence we’re presenting is so entwined with the standing issue, the court should go forward on the merits so that the standing issue can be developed and dealt with jointly,” said Philadelphia solo practitioner Eric F. Spade, who is representing the student and neighbor petitioners. The foundation also argued in its preliminary objections that it was questionable that the county waited almost five years to seek to intervene in the proceedings, and the foundation would be prejudiced by an intervention after expending substantial efforts to litigate its original petition and to move the foundation to Center City. Beck said that the county’s offer is too late because it would be difficult in the current economic climate to get creditors to issue the bonds the county would need to proceed with its leaseback offer. Carluccio said that the Montgomery County commissioners developed the idea of the leaseback in 2007 after the student and neighbor petitioners asked for the county’s help in keeping the foundation at its current site. Based upon the Barnes Foundation’s 990 tax forms between 1998 and 2006 included in the county’s Feb. 29 brief, the difference between the foundation’s expenses and income was only $663,201, including legal fees, and only $238,188, excluding legal fees. That expenses differential and the foundation’s lack of endowment would be more than made up by the county’s offer of financial help, Carluccio said. Montgomery County, in its Feb. 29 answer to the preliminary objections, also responded that there is no prejudice with the timing of the county’s attempt to intervene “given the very slight process of the foundation’s trustees in effecting the relocation of the gallery to Philadelphia. The foundation did rush to choose an architect after the [student, alumni and neighbor] petition was filed and architectural plans are not complete. No ground has been broken. No prison has been moved. From a zoning and land use standpoint, the selection of an architect and commencement of design is very slight prejudice and ordinarily would not affect the outcome of a matter being decided on other grounds.” The city of Philadelphia has OK’d a lease with the foundation for the Youth Study Center’s current home between 20th and 21st streets on the Benjamin Franklin Parkway. Alicia Taylor, a spokeswoman for the city Department of Human Services, said the Youth Study Center is slated to move to its temporary home at the Eastern Pennsylvania Psychiatric Institute at 3200 Henry Ave. in East Falls by early summer and that it will move to its permanent home at 48th Street and Haverford Avenue in West Philadelphia by the summer of 2010. Beck said the move to the parkway is moving “full speed ahead,” including an architect’s formulation of a block design with the foundation’s building committee and the undertaking of pre-construction tests, such as soil and sewer tests. “What has started is a lot of the preliminaries, you don’t just put a building up, especially in the center of the city,” Beck said. Well over $100 million has been raised for the site move, including a $25 million state allocation, Beck said. The attorney general, charged with representing the public interest in charities, has joined with the Barnes Foundation in filing preliminary objections. Lawrence Barth, a deputy attorney general, arguing in a Nov. 20 memorandum of law in support of the AG’s preliminary objections, said that the petitioners lack standing to intervene, Montgomery County’s status as a governmental entity does not give it any greater standing and that it is in the public’s best interest to keep Ott’s prior orders in place. Spade’s clients also reprise an argument made in the last round of litigation: Barnes and the other founding trustees stipulated in the founding charter that the foundation was to maintain in Lower Merion an art gallery for the purpose of the appreciative education of the fine arts and an arboretum for the purpose of horticulture, and that splitting up the Barnes Foundation would “fatally” comprise the synergistic and unduplicated relationship between the galleries and the arboretum, according to the initial petition. The Barnes Foundation and the AG’s office have the option to file a response brief to the petitioners’ briefs by March 20. Oral arguments about the preliminary objections are scheduled for 9:30 a.m. March 24.

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