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The best use of a property is not always a matter of current zoning and subdivision ordinances or environmental regulations. Sometimes the current occupants of land don't have the final say in how to maintain a site. If a prior owner established certain guidelines in a written document of record, additional restrictions on what is or is not permissible use may not be in line with modern demands.

My earliest experience with such limitations came in the form of deed language that had been carried forward for decades, prohibiting certain ethnicities from purchasing land. Later on, in acquiring my current home, a deed restriction set where the garage can be placed on the lot: within 50 feet of the rear property line, although current zoning requires 25 feet of setback. Although both restrictions were probably meant to preserve the nature of the neighborhood at the time, the earlier example represents an infraction of civil rights, while the latter is merely a design factor in replacing our disintegrating 100-year-old garage.

Battles over the fate and future of the internationally renowned Barnes Foundation Museum and the more locally known Schuylkill Center for Environmental Education highlight yet another aspect of land use directives. Both entities are ruled by the desires and legal wills of the founders and donors of these sites for specific purposes. Financial difficulties and unpopular actions of recent Boards of Directors and Trustees have brought both organizations to Pennsylvania's Orphan's Court to determine the propriety of those actions.

Dr. Albert C. Barnes earned his fortune through co-invention of the silver nitrate antiseptic Argyrol in 1899. His millionaire status allowed him to invest in art, starting his collection around 1912 during frequent trips to Europe, thereby acquiring many inexpensively bought works by Picasso, Renoir, de Chirico, and Cezanne.

Eventually the mass of art outgrew Dr. Barnes' house in Merion, Pennsylvania, and in 1922 he purchased the 12-acre lot across the lane, with a promise to the seller to protect and maintain the arboretum. The next step was to build a museum on a corner of the site, now in the midst of a residential neighborhood. Dr. Barnes had his own very particular ideas about how art appreciation should be taught and to whom (not those corrupted by other art education). His instructions as to the precise placement of specific pieces of art on the walls (with no identification plates) became part of his instructional method preserved in the Barnes Foundation he and his wife created and now regulate by his will after his accidental death in 1951.

That will limits public access to Dr. Barnes' famous collection to five days each week, and 400 people per day at $5 each (the current administration further limits admission to 200 people three days per week). It also sets the pay for the full time art director at $5000 per year, which was lofty at the time but is hardly so lucrative today. It is little wonder that the Barnes Foundation faces financial difficulties. The collection cannot be broken up or sold, and earlier attempts to maximize public visitation raised neighborhood ire due to bus noise and traffic congestion on the residential tree-lined lane. Presently the Orphan's Court is considering legality of moving the entire collection to Philadelphia to the Benjamin Franklin Parkway near a number of other museums, to permit more of the public to visit and thereby increase revenues to protect Dr. Barnes' collection.

Signs are popping up all around the neighborhood: "The Barnes Belongs in Merion". Petitions to the court raise all kinds of arguments regarding "expanding" the interpretation of the will, asking whether the proposed move is either necessary or legal. The Foundation does house an Arboretum School as well as acres of outdoor gardens and its art program. Whether or not these functions can be financially supported in separate locations is one of the arguments accompanying the outcry of "ripping the Barnes from its historic context" and losing this "crown jewel". The neighbors point to a racial discrimination lawsuit initiated by the Barnes Foundation in 1996 as the only litigation between the parties, while the Barnes claims lack of support and outright antagonism from its neighbors.

Less than ten miles away, just inside the Philadelphia border, the Schuylkill Center for Environmental Education, or SCEE (formerly the Schuylkill Valley Nature Center), faces a battle of wills as well. The heirs of a railroad tycoon family set aside their estates for a nature center and recreational and conservation area for public use and enjoyment, and SCEE began operating in 1965. The Center has grown from an original 340 acres to encompass 364 acres, a wildlife rehabilitation clinic, a land restoration department, and an environmental art program, but its current legal battle is rooted in the 2002 opening of the Green Woods Charter School (K-8) on site.

The daughter of one of the grantors is a member of the SCEE Board of Trustees and a retired professor of urban design and environmental planning at the University of Edinburgh. Dr. Eleanor Smith Morris has petitioned Orphan's Court to void the lease to the charter school because it was not approved in accordance with the SCEE bylaws or state laws regulating non-profit corporations, and because the school was not formed to accomplish any of the SCEE purposes as set forth in the original grant. She opposes other actions by the SCEE Board of Trustees as well, stating her purpose is to return the Center to its mission and remove inconsistent use that restricts the general public's use of the land.

What happens in each of these situations if the suits prevail? If the Barnes' neighbors win, the Foundation must remain in situ, and to survive will need to accommodate additional visitors. At the time of this writing, the Barnes rejected a purchase offer by the county where it resides to keep it in Merion. What it will do if its attention is divided between two sites is unknown, based on the management and communication problems it has faced over the years. Tying the art to the land has repercussions beyond Dr. Barnes' anticipation.

If the railroad heiress prevails, the SCEE will lose a steady revenue stream from the 200 children in Green Woods School, but the public still may not race to its trails. Dr. Morris argues for a passive nature preserve while SCEE claims it is upholding the charter for a nature area actively involved in education and research in environmental science.

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.

A 491Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE