'Eco-gem' in legal limbo; Blair-area land reserve caught between
donors and its directors
The Record - Kitchener, Ont. Author: BOB BURTT
Date: Oct 25, 2006 Page: A.1
Once known as the Cruickston Charitable Research Reserve, before it was
renamed "rare," the nature preserve in the
Blair area has been called an ecological gem.
But now the reserve's jewel-like image threatens to be tarnished by a legal dispute pitting the former owners of the
913-acre (365- hectare)
property against the charity founded to protect it.
At the centre of the dispute are restrictions the former owners, Jan Chaplin and Mark Fretwurst, placed on 130 acres
(52 hectares) of reserve
land surrounding the estate where the couple live.
Earlier this year, rare's board of directors took legal action to have a
court quash the restrictions.
Chaplin and Fretwurst retaliated by threatening legal action. They
charged the charity failed to raise money in a
meaningful way to pay the
mortgage and didn't defend a resulting foreclosure action.
Chaplin and Fretwurst now say they are prepared to take back ownership
of the land.
But rare's board chair, Keith Ainsworth, said the charges by Chaplin and
Fretwurst are unfounded. And the board
blames the couple for the
charity's difficulty raising money.
None of the allegations from either side have been proven in court.
Fretwurst and Chaplin have owned the estate at the heart of the reserve
since 1996.
Fretwurst, then employed in financial reinsurance, and Chaplin, an
executive with Canadian General Tower,
bought the 53 acres (about 21
hectares), including the house known as Cruickston manor, from the
University of Guelph.
Four years later, the couple decided to buy hundreds of acres
surrounding the estate as well.
Their intent was to hold the land in trust until they could turn it over
to a charity that would be its steward.
The couple bought the 913 acres from the University of Guelph for $5
million, using contributions by major donors
for part of the amount. The
university agreed to hold a mortgage for the balance.
By 2002, the charity had been formed, with five directors: Jan Chaplin,
her father, Jim Chaplin, Michael Barnstijn,
a former partner in Research
In Motion, Keith Ainsworth, chief executive officer of Com Dev, and
Thiam Lim, a director with Scotia Capital- Real Estate, Scotia Bank.
The land was then transferred to the charity from the company that
Chaplin and Fretwurst had formed to hold the land in trust.
Patti Leather, acting executive director for the charity, said it cost
the charity $5.4 million to buy the property
by the time legal, transfer
fees and other associated costs were included.
The current troubles started around the time of the transaction.
Shortly before the land deal was to be made final, the other directors
on the board learned Fretwurst and Chaplin
had arranged for an option to
buy the 130 acres around their estate, according to Ainsworth.
The couple wanted to keep the option after the land went to the charity.
This would give Fretwurst and Chaplin
an option for 15 years to buy the
130 acres for $227,500, according to Ainsworth.
The couple also wanted covenants that restricted the use the charity
could make of the 130 acres.
According to court documents, the covenants prohibit any building,
parking lot, structure or hiking trail from being
erected on the 130
acres. That land can be used only for an organic farm.
Fretwurst and Chaplin also insisted on an option to buy other parts of
the property if governments ever decided to
build roads or bridges there.
Despite concerns about the restrictions, the sale went ahead.
The charity paid $5.4 million for the property and still owes $4
million, Leather said.
Barnstijn, who is no longer a board member, holds two mortgages worth $4
million. Fretwurst and Chaplin,
who is also no longer on the board, are
guarantors for those mortgages.
The entire rare reserve is larger than Central Park in New York and
enriched by old-growth forest, rare plants
and migratory birds among
other wildlife. The 130 acres in question are important themselves from
an ecological and historical perspective.
Ainsworth said the restrictions and options on the land make fundraising
difficult because rare can't tell investors it
will own the property
forever.
Potential major donors are reluctant to contribute until these issues
are resolved, he said.
In an interview, Chaplin said she always wanted to ensure the charity
had enough land. She also wanted the
manor property to have enough land
to protect the integrity of the estate, she said.
"The manor sits on 53 acres and the buildings are close to the edge,"
Chaplin said. "We wanted a buffer from
the charity lands and wanted to
be certain that the manor lands didn't end up being cannibalized by the
charity lands."
Court documents indicate Fretwurst said the board had allowed tours and
school groups excessive use of the 130 acres despite promises not to.
Ainsworth said the turn of events is unfortunate.
"The original vision for the charity was a noble and worthwhile vision,"
he said in an interview. "And the board
has worked assiduously to
achieve that and make sure all 913 acres is available for ecological
research and the public good."
Ainsworth has his own view of the current situation:
"We as a charity were not formed to be holders of land and land options
for the personal benefit of a couple individuals,"
he said. "I don't see
that as being in line with the charitable goals or intent."
At one point, it was thought a foreclosure action might persuade Chaplin
and Fretwurst, the guarantors of the mortgage,
to lift the encumbrances
on the property. Ainsworth said the foreclosure has been discarded.
Chaplin's lawyer, Jerome Morse, told The Record the cash- strapped
charity should sell aggregate on the property if
it needs money. Some
areas could be mined without damaging sensitive areas.
Ainsworth disagrees.
"The board's scientific advisers were all aghast at the idea," he said.
Chaplin said she and Fretwurst considered all of the possibilities for
the property before they acquired it.
She said they decided not to extract the aggregate, valued at up to $30
million, but she wanted the charity to have the
option if it faced a
financial crunch.
"This is such a dumb fight," she said. "At the end of the day, I don't
think it has anything to do with the charity per se.
"I think it has everything to do with Michael Barnstijn. Michael
Barnstijn is the charity now."
Barnstijn wouldn't respond to Chaplin's statement.
"What I'm doing here is protecting the charity that I helped to found,"
he said. "The charity is trying to do its best
to preserve the land and
carry on research."
Ainsworth said the charity is still committed to the original vision to
make the property available in perpetuity for
the public good. Despite
problems, some scientific research and ecological restoration work is
being done, he said.
Public events continue to be held at the reserve as well.
