Marcia Chambers Photo
At a Probate Court hearing last week on the future of the Foote Memorial Park, the elders of the Trinity Episcopal Church on the Green and the Zion Episcopal Church in North Branford made it clear that it was time for the churches to get their due.
The voices of the pastors, attorneys, and directors of the churches made their thoughts known at a second hearing before Probate Judge Frank Forgione (pictured above) and other interested parties at a hearing at Town Hall. The judge is now weighing a request by the Wallace H. Foote Family Charitable Trust Foote to divest itself of the park and deed it to the town of Branford.
The Trustee, the Bank of America, N.A., seeks to divest itself of the 44.6 acre park, saying the town of Branford is better equipped to run the park. “The cost and complexity of maintaining the Park is becoming prohibitive and a burden on the Trust,” a lawyer for the Trust said in papers filed with the Probate Court and stated in court.
The trust, the legacy of Wallace (Wally) H. Foote, who died in 1966, is now valued at about $11.3 million and is overseen by the bank, which is located in East Hartford. The annual cost of maintaining the park, along with its employees, is about $340,000, the trust’s attorney, Kelley Galica Peck, has said. That fee, she felt, is about what the Trust is allowed to spend, though she agreed with the judge when he asked if the bank has the right to invade the Trust’s principal if necessary.
The Rev. Sharon Gracen of the Trinity Episcopal Church on the Branford Green spoke to the reality the churches have faced over the years “We have a much greater stake in this than has been historically recognized. That is our concern. Our budget is essentially what it is for the (Foote) park. Does that mean the park gets what it needs and we don’t?” She asked if other ways could be found to support the park.
According to the 2014 filing, Trinity received $15,000 and Zion $20,000 as their yearly gift. Foote attended both churches during his lifetime and gave generously to them.
Gracen said she hoped the hearing now before Judge Forgione would help to clarify the churches’ legal standing. “We look at this as an opportunity. We want our standing clarified.” She was joined at the hearing by the Rev. Lucy LaRocca, pastor of Zion Episcopal Church.
Gracen told the court that she believed the named beneficiaries in the trust, both churches, should be equally recognized, even if it means other funds have to be found for the Foote Park. Representatives from both churches said their churches were in need of capital improvements.
Alex Palluzzi, Jr., the town’s director of parks and recreation, made it clear that in his view the Trust put the park first.
Since the first hearing two weeks ago, two of the principal players, the town and the Foote Trustee have met. Now representatives from the two churches will take their seats at the table, too, as they outline their needs for the first time. The judge has heard from the current Foote Park director and now knows the park needs major improvements. He has also heard for the first time of the needs of the churches. He was also told by First Selectman Jamie Cosgrove that the town intends to keep Foote Park as a park. He has also heard from the Branford Land Trust, which suggested a legal avenue to make sure the park stays a park in perpetuity.
At the end of the hearing, Forgione urged the major players to continue talking. Judge Forgione believes that through discussion and listening to one another the parties will come up with a plan. Click here to learn more about his thoughts.
“I feel right or wrong there may be some leverage we have today that we won’t have tomorrow. I want to use the opportunity,” Forgione told the group, adding he does not intend to drag the decision making out.
“What level of detail do you expect us to come back to you within two weeks?” Town Attorney Bill Aniskovich asked the judge.
“I would love the churches to come back, the town to come back and say we have an understanding with the trustee regarding what we expect to receive from the trust. Although we are not as happy as we would like to be, we can live with it if it is mutually beneficial.”
The Town Weighs In
Aniskovich said should the town become the owner of the park, the town has a way to reduce the Trust’s costs. “The idea here is to free up funds that are used to operate and maintain the park so that they can be used for the other beneficiaries,” he said.
Aniskovich told the judge at the outset of the hearing that he and Peck, the bank attorney, had met to discuss this issue as the judge requested at the previous hearing. He said he discussed with the bank an idea put forth by the town’s Finance Director Jim Finch. “In discussions with Mr. Finch we learned we are capable as a town of bonding at a favorable rate to do capital improvements at the park. So that would allow us to make a grant request ( to the Trust) well below what it would cost to take money out of a trust to do the capital improvements.
“It would also allow for more room to entertain requests for capital improvements at the church structures. We are aware that we have the ability to do this and it would be less of a drain on the trust. It would also provide for more improvements for grants.
“We are thinking of a structure to meet all these needs but we are not there yet. We need to discuss the elements of that structure,” Aniskovich said. Later on he said the town has to be mindful of the taxpayers, too. Under the current proposal, the Foote Park would come under the town’s Park and Recreation budget, which would be funded by the Trust. If the bonding idea worked, he said, funds from the Foote Trust could be used for other beneficiaries. “It is as important for the town as it is for the churches.”
Cosgrove added, “We all have an interest in talking about our needs, but we also all have an interest in assuring that this parcel remains the same.” He said a structure needed to be in place that involves all the beneficiaries. And that process, he observed, has started.
Wallace Jones, who sits on the Zion Church financial committee, said he and the other Zion officials appreciated being given a seat at the table. “The trustees have grown the trust. We have an opportunity to create efficiencies and an opportunity to restructure the relationships and the responsibilities for everyone’s benefit. We hope that our voices can be heard and that the trust can be looked at with another set of eyes. The standing of Zion and Trinity have with regard to the actual disbursements of funds from the trust should better reflect what Mr. Foote’s intentions were,” he said.
The Trust Weighs In
Peck, of the law firm of Robinson & Cole, is the attorney for the Trust. She had explained why the churches were getting so little.
“Let me be clear. We are asking for permission to transfer the real estate. That is all we are asking for. I can tell you over the last few years that the costs associated with maintaining the park have increased and that has decreased our ability to make distributions to other beneficiaries. At the present time, because we are responsible for maintaining the park, we can’t do that. We can’t say yes to those requests. We are looking for alternatives so that we can continue to say yes to those very important needs that the church has, that the town has.
“We strongly believe that because of the town’s ability to bond and other things they will be able to manage this park at less than then the $340,000 we are spending. And that will release some of our available expenditures for other purposes, including the churches. This is in your best interest,” she told Andy Campbell, the Trinity church attorney. He had outlined the Church’s position.
The judge made it clear that he wanted the Trustee to provide more in the way of funding to the park and the churches. At one point he told Peck, “The Trust authorizes you to invade the principal as you know,” he said. Peck replied, “I know.”
The judge also recalled from the last hearing was while the IRS “has put a 5 percent figure on it, you are not bound by that. You can go to 6 percent.” Peck replied. “That is about what we were spending, about 7 percent. That is outside the guidelines.”
Rev. Gracen Speaks Out
Gracen said to those assembled in court, “We have not had this conversation before. I think we need to give some strength to paragraph 2 given the nature of the fact that the parcel did not include a park when he died.”
The Foote will says that the net income of the trust shall be expended in the discretion of the Trustees for some or all of the following purposes.
Paragraph 2 says: “To expend a portion of the income of the trust, in the sole discretion of the Trustees, toward the support of Zion Episcopal Church, North Branford, Connecticut, and Trinity Episcopal Church, Branford, Connecticut, some preference being given to Zion Episcopal Church.”
Diane Iglesias, an attorney representing the Zion church, told the judge, “We have made requests (to the Trustee) that have been denied.” She said the church had been told that the funds could only be used for outside improvements. “Our take has always been that we have been treated as second class citizens,” she said, observing that the bank, serving as Trustee, gets far more in the way of compensation than do the named churches. According to the 2014 filing, the Bank of America received $70,027 for services as Trustee.
Penny Bellamy, who served as town counsel during former First Selectman Unk DaRos’s first three terms, said the prior Foote trustees were deeply concerned about the park and the town. She also voiced concern that if Judge Forgione approved the transfer of the land at last week’s hearing it would suggest the court’s stamp of approval that “the deal is done before it is done.”
Aniskovich quickly responded, saying the town intended to put the proposal before the Board of Selectmen, the Board of Finance, and the Representative Town Meeting. He said the proposal “will be a specific proposal that includes a specific set of perimeters that will grant the town certain monies to support the park. Legally what you are authorizing,” Aniskovich said to the judge, “is the ability of the bank to enter into a negotiation.” He added that before that proposal gets to the other town bodies, discussions needed to be had “with the other beneficiaries and the bank as to whether we can come up with an arrangement, not a deal, but an arrangement that will meet the needs of the various beneficiaries.
“There has to be a process here in which all of us are engaged in in order to determine that the arrangement is satisfactory. To the extent we as the parties to the transaction can reach that determination than we will have something to submit to the Board of Selectmen, the Board of Finance, and the RTM. And if we can’t then we won’t,” he said.
At one point Zion officials pointed out that the churches were named beneficiaries in the will and they believed that entitled them to greater standing as a result.
But that argument did not sit well with Peck, the Trust’s attorney. “I just want to be clear about the churches having greater standing than the town,” she said. “The townspeople are at least as much the beneficiaries as the churches. The trustee wants to provide for all but you do not have greater priority because your names are mentioned in the will.”
Rev. Gracen did not miss a beat. “We are not asking to be greater; we are asking that we be at least equal.”
In the end, the judge did not rule; instead he urged the parties to get together to talk about a possible agreement. After the court session ended, those around the table pulled up their calendars and began to work on dates. The next hearing is scheduled for Nov. 19 at Branford Probate Court at 11 a.m.
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