Judge throws out suit to stop Barnes move

A Montgomery County judge has thrown out an attempt to stop the Barnes Foundation's $5 billion art collection from moving to a new Philadelphia exhibition space.

The decision is a major defeat for opponents of the move, who have been fighting in court since 2002 to keep the foundation's dozens of Renoirs, Cezannes and Picassos hanging where Albert C. Barnes left them in Lower Merion Township when he died in 1951.

"It's just what we were looking for," said Barnes Foundation president Derek Gillman.

In an eight-page decision, Judge Stanley R. Ott found that neither the citizens' group, Friends of the Barnes Foundation, nor Montgomery County government has the legal standing to ask for a new hearing in the case. The two groups wanted Ott to reconsider his December 2004 opinion overturning Barnes' will and approving the move to Center City.

The failed challenge was two-pronged.

The Friends of the Barnes said Ott was never told that in 2002 the state had budgeted $100 million for a new Barnes facility in Philadelphia. At the time, the foundation was saying in court that it was still attempting to remain in Lower Merion. Ott, who called the long-running dispute a "saga," did not offer an opinion on that issue in today's decision.

And Montgomery County asked to reopen the case so Ott could evaluate a $50 million offer it made last year to buy the foundation's land and buildings to lease the property back to the foundation, thereby keeping the artwork in Lower Merion.

Ott found that a pair of previous state court decisions required him to deny a hearing on either matter. Under a state Supreme Court ruling that rejected a private school alumni group's attempt to challenge school administrators in court, Ott found that the Friends of the Barnes Foundation are not sufficiently affected by the planned move to challenge it in court.

"We conclude that, as many who have gone before, the Friends lack standing because they have no interest beyond that of the general public," Ott wrote.

He tossed out Montgomery County's argument by citing a Commonwealth Court opinion that says that the state attorney general's right to protect the public interest trumps local governments in some cases.

The Attorney General's Office has appeared in court to defend the plans to move. Ott wrote that there is "no authority" for Montgomery County to claim that it is also protecting the public interest by contesting the move.

Even before the latest challenges were thrown out of court, Barnes officials have been moving ahead with their plans. Gillman said a conceptual design for the new Barnes facility is almost complete, and cost-estimating is to start in June.

Meanwhile, opponents of the move are surveying their options. Attorneys for the Friends of the Barnes Foundation and Montgomery County each said they had not decided whether to appeal.

"I'll have to sit down with the county commissioners and the chairman, Jim Matthews," Montgomery County Deputy Solicitor Carolyn Tornetta Carluccio said.

Evelyn Yaari of the Friends of the Barnes Foundation said she might pursue another course to fight the move: claiming that moving the collection would destroy an irreplaceable historic site Barnes created. Her group is seeking to have the Latches Lane site given National Historic Landmark status, which they hope would impede the move.

"We have the moral upper hand in the discussion," Yaari said. "There's absolutely no question about that."