Mamk Village Prepares to Sue School Board Over Kemper Park

by Joan R. Simon and Judy Silberstein

(September 13, 2006) Despite last month's defeat in the NY State Court of Appeals, (See: Court of Appeals Backs School Board on Kemper Park) supporters for preserving the Kemper Memorial Park in its current location and configuration are continuing with legal and other strategies to block the Mamaroneck School Board's proposed changes. On Monday, September 11, the Mamaroneck Village Board of Trustees voted, contingent on review of the details by the village attorney, to join the preservationist cause, authorizing "the law firm of Reed Smith, LLP to represent its interests, pro bono, in protecting the Richard M. Kemper Memorial Park." On Tuesday, September 12, Kemper relatives and their supporters appeared at the monthly meeting of the Mamaroneck School Board to argue, sometimes passionately, sadly or angrily, that the park be left unchanged.

Mamaroneck Village Joins the Fray

The exact nature of the next legal step was left unrevealed, but the basis for having Mamaroneck Village participate in a suit was spelled out in a resolution unanimously approved by the Mamaroneck Board of Trustees that incudes reference to the municipality's "residual 'gift over' interest in the park. (See the entire resolution, below.)

The "gift over" interest refers to a section of the deed conveying ownership from the Kemper donors to the Mamaroneck School District. The deed reads: "In the event that the said party of the second part shall at any future time be dissolved without a similar municipal corporation’s succeeding to its interests, or if the site westerly of said premises now held and used for public school purposes be abandoned and such use terminated, then the said premises hereby conveyed shall pass to the municipality in which the said premises be then situated, thereafter to be held and maintained by it and its successors for the purposes aforesaid." (See: Excerpt from Deed.)

Having Mamaroneck Village take control of the park through a condemnation and eminent domain proceeding was another legal possibility raised at Monday's meeting by Lino Sciarretta, the Mamaroneck Village attorney, who indicated he is receiving a retainer from Reed Smith for his work on the Kemper issue. But condemnation would take too long, said Richard Cantor, grandson of the park donors, who stressed the current vulnerability of the park. "The house is on fire, by the time we go through a condemnation, we're going to be looking at ashes, instead of a house we can save," he said.

Time should not be a concern, responded Mr. Sciaretta, since the first step of any legal move would be to seek an injunction to block the school board from taking any action on the park.

A new suit with Mamaroneck as plaintiff would send the issue back to the NY Supreme Court, where in early 2005 a judge sided with Mr. Cantor, granting him standing to sue and prohibiting the School Board from proceding with their proposal. (See: Judge Rules: Kemper Park Changes Prohibited.) That ruling was ultimately overturned at the appellate division (See: Court Rules for School Board on Kemper Park.) and confirmed twice on further appeal. ( Latest Kemper Appeal Denied; Case Goes to Court of Appeals.)

Meanwhile, Mayor Phil Trifiletti said, the municipalities and the schools are increasing efforts to develop new ball fields in locations that do not require changing the memorial park. To that end, he announced, the municipal leaders would be meeting with the school superintendent on Thursday, September 14.

On Thursday morning, the School Board indicated via email to the Gazette that it was surprised that the Village would bring a suit so late in the process, particularly after the Appellate Division held that the proposed plan is consistent with the restrictions in the deeds. "Although we cannot control whether litigation is brought, we believe that if the Village brings litigation, the Village will be unnecessarily subjecting taxpayers to additional costs," the School Board stated. "This is because even if, as reported, the Village would have legal counsel working for it on a pro bono basis, the District will be required to retain counsel to defend any litigation

School Board Hears Mostly “Cons” on Kemper Park

Tony Marsala displayed a World War II photo of him and his brothers. His brother John was killed in service and is listed on the monument.

Among the gathering at the Tuesday night school board meeting, there were several parents who spoke in favor of the board’s plan to use a portion of the Kemper Memorial Park for a sports field; but the vast majority of the approximately 30 speakers were adamantly opposed to any changes to the park. The common sentiment seemed to be: “just because it’s legal doesn’t make it moral or ethical,” referring to the recent court victory by the school board. For more than an hour, the reconfiguration of the Kemper Park envisioned by the school board was deemed “nothing short of treacherous,” “a bad precedent,” and “a disgrace,” with loud applause following each speech against the proposed changes.

Councilman Ernie Odierna suggested making room for a new field by decking the parking lot.

The only concrete, if somewhat unorthodox, idea came from Town of Mamaroneck Councilman Ernest Odierna who proposed installing an Astroturf field on a deck over the high school parking lot, as “a reasonable alternative to moving the memorial.”

Before opening the meeting to the audience, school board president Cecilia Absher clarified the proposed park changes, which she said had been misrepresented in the press. “The proposal calls for relocating the monument 40 yards to a more prominent location on the donated property," does not use any of the donated property for parking and would create a park “approximately the same size as the donated property.”

CON: Burt Corwin, a Vietnam veteran, noted the importance of a memorial to his generation.

PRO: David Carlyon a veteran, son of a veteran and grandson of a veteran, supported the board plan.

CON: Paul Cantor, a grandson of the donor, reminded the board of the park's history.

“Before we move forward with any plan, we will reach out to our community and involve them in this process. ” In closing, she said, “We hope that going forward the dialogue and commentary around this issue can be done with respect and civility.” Most, but not all, of the speakers adhered to that policy on Tuesday evening.