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LOCKPORT – Niagara County Judge Matthew J. Murphy III is expected to rule soon over whether Niagara County or the Kiwanis Club of Niagara Falls is entitled to the site of the defunct Oppenheim Zoo.

The sides have been battling for two years over whether the county or the Kiwanis Activities Corp. should take title to the 15.3 acres of land adjoining the county’s Oppenheim Park on Niagara Falls Boulevard in Wheatfield.

The zoo went out of business in 1988, and the Oppenheim Zoological Society’s attorney, Robert J. O’Toole, said the society will formally disband once Murphy decides who is entitled to the property.

Last month, Murphy denied the county a share of the society’s trust fund, and in 2011, State Supreme Court Justice Richard C. Kloch Sr. ruled the county was not entitled to the land, though litigation over the issue was allowed to proceed.

In 1944, Max M. Oppenheim, a Niagara Falls real estate agent, deeded 80 acres of land on Niagara Falls Boulevard to the newly created zoological society, for use as a zoo bearing his name.

Oppenheim died in 1956, and two years after that, the zoo society agreed to give most of the acreage to the county to be developed into Oppenheim Park, which still operates.

Mary E. Maloney, attorney for Kiwanis, insists that the 1944 deed gives the remaining 15 acres of zoo land to the Kiwanis Club if it’s no longer being used as a zoo or a park.

But Assistant County Attorney R. Thomas Burgasser says the deed gives the county the right of first refusal if the zoo is out of business.

He said the 1944 deed was so clumsily drafted that it doesn’t say what Maloney believes it says. “It’s not things [Kiwanis] didn’t do; it’s the way it was written,” Burgasser said. “Any interest of Kiwanis was so remote into the future that it was void.”

“There is no active right of the county. None,” Maloney said. “It’s a clever argument by Burgasser, but it’s absolutely false. … For at least 20 years, [the zoological society] has been in violation of the deed. It’s not a zoo. It’s not a park.”

“We take it without restriction,” Burgasser proclaimed on behalf of the county.

But Maloney asserted that Kiwanis owns the land now, not the society.

“We take the position we have owned this land for at least 20 years,” she told Murphy. “We had to do nothing. We’re vested. It’s not a conditional gift to us. … They simply can’t transfer the land at this point.”

“They certainly haven’t acted like it’s theirs,” said O’Toole, the society’s attorney. “They haven’t maintained it. They haven’t paid property taxes.”

Maloney accused O’Toole, who is also attorney for the Town of Wheatfield, of trumping up some building code violations to prevent Kiwanis from exercising its rights.

“I take strong personal and professional exception [to that accusation],” O’Toole told the judge.

Burgasser said the State Court of Appeals has ruled that the right of first refusal is not an option, but a pre-emptive right.

With a purchase option, the county could compel the zoological society to sell it the land, but it doesn’t have to bother to do that, Burgasser insisted.

O’Toole has said that if Murphy rules the land is still in the society’s control, it will probably just give the property to the county.

Maloney has said Kiwanis intends to sell the property if it wins the case, with the proceeds earmarked for the club’s charitable works in Niagara Falls.

Kloch’s 2011 ruling was aimed at moving the sides to a negotiated settlement, but that never happened. Two years ago, Burgasser said in Kloch’s courtroom that Kiwanis had offered to sell the zoo site to the county for $300,000. Maloney said at the time that the county had counter-offered $20,000, plus an agreement not to press for the trust fund. Burgasser denied that at the time.

Last month, Murphy split up the $229,789 trust fund without a share for the county.

It will pay $5,000 to the zoological society; $7,105 to William D. Broderick, attorney for the trustee, Alliance Bank; and $5,309 to that bank.

Of the remaining amount, Temple Beth El of Niagara Falls, of which Oppenheim was a member, receives 50 percent, or $106,187.

The Kiwanis Club receives 20 percent, or $42,475. Ten percent each, or $21,237, goes to the Salvation Army, Niagara Falls Memorial Medical Center and the United Way of Greater Niagara.

The latter is the successor of the defunct Beeman Foundation, which was named by Oppenheim as a beneficiary.

email: tprohaska@buffnews.com