GILFORD — The company that owns Kimball Castle has submitted a draft legal pleading that would have the town in its capacity as trustee of the Kimball Castle Trust ask Superior Court to alter the terms of the trust and allow the company to tear it down.
On yesterday's front page, The Daily Sun ran an incorrect story that said the town has already filed the pleading in Belknap County Superior Court and that is not the case. Rather, the Selectboard has announced it will hold a public hearing on the matter at Town Hall on August 14.
Late Monday afternoon, town officials directed an e-mail "blast" relative to the Kimball Castle to subscribers that featured an announcement of the pubic hearing. Attached were legal documents The Daily Sun mistook for papers the town had already filed with the court. Town Administrator Scott Dunn said on Tuesday, they were "draft" legal documents prepared by attorneys for Kimball Castle Properties, LLC that have been submitted to the town for review and consideration.
The draft "cy pres" pleading would have the town, as trustee, tell the court that Kimball Castle Properties, LLC would continue to provide public access to the 220 acre lot but the company should be allowed to tear the castle down because the original terms of the deed restrictions cannot be met.
Cy pres means "next to" and in law it means that this is the next closest solution because original deed restrictions as the typically apply to gifts and charitable donations cannot be met.
According to the draft pleading, the conditions of the deed restrictions of the charitable trust cannot be met because Kimball Castle Properties, LLC was never able to raise the capital needed to restore the historic structure to a restaurant and lounge. The town's building inspector has condemned the property, which has deteriorated significantly because of weather and vandalism, and ordered the owner to tear it down or install a fence surrounding it to reasonably prevent access.
The first cy pres change to the original charitable donation was made in 1999 when the court allowed the property to be sold to a private party, Historic Inns of New England, LP. The owner of Kimball Castle Properties, LLC is one of the original owners of the limited partnership.
The first change provided the money from the sale be used to maintain most of the property for wildlife observation and recreation trails.
Should the court grant the pleadings in the owner's suggested language, the area will remain open to wildlife observation, emergency access, and recreation, however it may not be subdivided and will be limited to a single family residence.
In an e-mail sent to The Daily Sun, Dunn said the selectmen, in their official capacity as trustees, have not reviewed the suggested pleading. And, to the best of his knowledge, the office of the Attorney General, Division of Charitable Trusts has not reviewed it either.