A strongly worded 20-page document submitted to the New York City Surrogate's Court last week by the New York state attorney general's office contends that the late Lucille Lortel's will forbids the not-for-profit Lucille Lortel Foundation from selling the historic, 148-seat White Barn Theatre and Museum in Norwalk, Conn., to land developers.
Local activists, who have waged a campaign against the sale through a grassroots neighborhood group, Save Cranbury, hailed the opinion. Text on the group's website, www.savecranbury.com, says that Lortel "bequeathed the property to her theatre foundation, whose trustees now propose to build a cluster home development and possibly a school on this site," and that those "graced to have known Miss Lortel know that this would never have been her intent."
Back Stage has reported on the matter since February. Lortel Foundation spokesman David Gersten reiterated that the foundation has no comment on the matter.
Executors Michael Hecht and James J. Ross—who are also foundation trustees—have asked the court to construe a paragraph in Lortel's will so as to effectively free the organization from having to run the physical theatre and from maintaining or continuing to own the surrounding 18.2 acres. If the court rules in the foundation's favor, the foundation could conceivably produce under the White Barn moniker without necessarily doing so at the Norwalk site.
The attorney general's document, submitted Tues., Oct. 26, pokes holes in the foundation's case, even noting that because the executors and not the foundation brought the petition, it will likely need amending. As overseer of the assets of New York state nonprofits, Assistant Attorney General Amy Karp, who wrote the opinion, says the foundation's arguments are flawed.
After offering an overview of the White Barn's history and that of Lortel herself, the opinion states that the will "should be construed to require the foundation to continue the operations of the White Barn Theatre and Museum at the Connecticut property," and that even if the will fails to "explicitly state" that the theatre should "continue at its present location," it is clear "this was [Lortel's] intent."
In its petition, the foundation cites numerous problems with the property. Karp's opinion responds to them point for point: "At best," it says, the petition "raises a number of practical problems" that "may well be capable of being solved." While the foundation says the White Barn runs at a loss, it does not offer "any evidence to that effect" and Karp notes that the foundation has some $30 million in assets.
Further, while the foundation publicly announced a major renovation project two years ago—a project that remains unfinished—it "has not shown that it tried to raise funds to make any necessary renovations and repairs" and there are likely to be "untapped sources for funds" to continue the White Barn's operations on-site. The foundation claims that it "must sell the [White Barn] because zoning restrictions prohibit expansion of the theatre and it cannot obtain a variance," but, Karp says, the foundation has "made no showing that it applied for a variance and that [it] was denied."
Thus, Karp says, the foundation "has not shown that it is impossible or impracticable" to run the White Barn at its present spot, and even if the court finds otherwise, "it does not follow that the land should be sold."
Connecticut Attorney General Richard Blumenthal has submitted a letter to the court asking that the state be allowed to submit its own opinion—one likely to agree with Karp's—and Judge Renee Roth has asked him to submit a motion to do so, which is expected next week. The overall matter is expected to remain on the docket indefinitely.