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Lost in time and litigation: the Oppenheim Zoo



Like most people who lived in the heyday of Niagara Falls, Max M. Oppenheim had no idea what the future held for his thriving city.

Oppenheim had a plan to give his town’s youth, especially poor youth, a free attraction, one filled with animals from around the world. The real estate baron had the money, the connections to grab the land, and the conviction of his generous spirit. The Oppenheim Zoo opened in 1943 and became a deeply ingrained memory for thousands of kids—a seasonal rite of passage, and, maybe, a first encounter with a live monkey.

Why the Oppenheim Zoo closed is a familiar Falls story: outdated and shortsighted designs, dwindling population and resources, and notable problems beneath the ground. But the story of why the zoo never reopened, of how one great man’s sincerest wish could not survive or be resuscitated, is another story entirely. A story involving bad timing, medieval property concepts, the changing nature of zoos, and how difficult it is to set up something generous, but specific, for the future.

“Every day is circus day”

Max M. Oppenheim was born into poverty in 1869. He could not go far in school or see much of the world. Oppenheim would take great pains to correct those circumstances for himself and for similarly underprivileged children.

Oppenheim started a realty business in Niagara Falls in 1891. Thirty years later, Oppenheim’s office dominated the corner of Main and Willow Streets, and his name was attached to subdivisions around the region. He worked equally hard at giving and helping, joining the Niagara-area chapters of the Kiwanis Club, the Independent Order of Odd Fellows, the Boy Scout Council, the volunteer fireman’s company, the Optimist Club, and the Indian Defense League of America. That was on top of helping to found Temple Beth El in Niagara Falls, and, much later, establishing a $50,000 scholarship fund for underprivileged youth.

But animals, and their ability to amaze and educate children, were what most captivated Oppenheim. He was inspired by the crowds at zoos in Chicago, New York, and other cities he toured, and the hometown possibilities clicked when he visited Hyde Park Lake with a friend in 1941. “When I saw ducks come ashore and eat out of his hand, I thought that, if he could do that, so could I,” Oppenheim told the Associated Press a few years later.

Oppenheim tried to push the Niagara Falls city council into establishing a zoo at Hyde Park in the early 1940s, starting with nudging donations of swan, ducks, pheasants, and Sika (Japanese) deer to a shelter there. He offered to donate the building costs for a true zoo, but was rejected. Buffalo already had a sizable zoo, the council might have noted, and it had just seen a major expansion during the Great Depression, funded by the Works Progress Administration.

So Oppenheim, at the height of his civic influence and business success, bought an eighty-three-acre family farm on Niagara Falls Boulevard in the town of Wheatfield, near the Bell Aircraft factory, then bought another forty-nine acres soon after. Whatever was left after building out the zoo would be farmed to feed the animals, or offered as simple park space. The goal was to fascinate and educate children of all backgrounds, with no admission charged. Thousands flocked to the zoo’s opening in 1943, and were greeted by Mynah birds, Angora goats, rhesus monkeys, and Burmese yaks, among many other creatures. Nothing too exotic, but more than any child from an industrial city would have expected to see.

Oppenheim told national wire reporters who called that he would “devote his life to development of the zoo and its surroundings.” He noted that he had set up an Oppenheim Zoological Society with a $250,000 trust (worth nearly $3.4 million today, adjusted for inflation). The money and land would be available so long as an Oppenheim-named zoo and park were in operation, with other rules and caveats set up for the zoo, the county, and the Kiwanis Activities Board he had helped to found.

Oppenheim died in September 1956, with no children, but many admirers. His zoo had around 100 animals and 3,000 people on that season’s opening day. He had created, as Hobby Bandwagon magazine described in 1947, a place where “every day is circus day.”

Stuck

The zoo was still popular in 1958, but Oppenheim’s initial 130-plus acre purchase now seemed overambitious. The zoo society transferred seventy acres of its land to the county to create Oppenheim Park. The board hoped that park visitors would carry over to zoo interest. At that point, more than 55,000 people came to the zoo per year.

But people’s relationships with zoos changed as the years went on. The Oppenheim design was of its time: animals in wire cages or concrete stables, laid out in cell-like blocks, with feeding and petting as a focus. The Niagara Gazette even jovially described Oppenheim animals as “inmates” in one headline from the 1960s. More than penned in, though, the animals could get very muddy. Even in grainy scans of black-and-white news photographs, you can see caked dirt on some animals, but especially the somewhat free-roaming bison.

“There is world-class clay under that site, the kind they cap landfills with,” says Tom Christy, who served as perhaps the last real Society president in the mid-2000s. Drainage is often an issue in Wheatfield development, but the zoo site’s dense clay was set as deep as ten feet below the ground. Animals stood in mud and water after even modest rainfall. As early as June 1971, the Gazette noted a “drainage situation” at the zoo.

A more lingering problem was relying on a trust built when Niagara Falls’ economy was far more robust. A Girl Scout troop held car washes and bake sales and door-to-door campaigns to raise $600 in 1971, but the zoo had spent $7,000 before it even opened in 1972. A membership campaign was launched, to little effect. The zoo had to continually cut into the trust principal to pay bills in the 1970s.

By 1984, according to a history of the zoo compiled by a later board, only $4,000 of the original trust remained. Niagara County turned the zoo down for a subsidy. The state health department raised concerns about drainage issues. Roughly 70,000 people had visited eighty-six animals the year before, but it was still, as another former board president Connie Lozinsky says, a particularly tough time to be a local, privately owned, suburban zoo.

“The big industry had moved out, Hooker [Chemical], all them, who could have helped,” Lozinsky says. “[In the 1980s], too, there were movements against zoos in general, against animals being caged. It was very difficult for Oppenheim Zoo to apply for funding, to get consideration for grants. It just existed outside of all the norms.”

The end came in 1988, when the Department of Agriculture, which oversees zoos, informed the Oppenheim board that it intended to press a federal lawsuit alleging violations of the 1966 Animal Welfare Act. Almost every Society board member and visitor I spoke with noted that the animals were found to be in good health. The citations came from drainage issues and insecure fences. The zoo could not afford any such fight, and closed its doors.

“Rebuilding for our community’s future”

Zoo backers knew that trying to house dozens of exotic species through the tough Niagara County winters would not work. But what about a zoo that worked with animals in its own climate zone, and put its focus on the experience of Oppenheim’s original audience, the children? The board sold about fifty acres of their land and brought in experts to consult on doubling down on Oppenheim’s vision.

Architect Mark Ernst was on the faculty at the University at Buffalo during the mid-1980s. He had tasked one class with creating a new master plan for the Oppenheim Zoo. Years later, while working at a private firm in Milwaukee, Wisconsin, he was recruited by John Long, a well-known Falls-area outdoorsman and zoo supporter. He brought a background in theater design and appreciation for children’s stories to the new plans for those fifteen acres. “You go through Central Park Zoo, it’s in a very urban setting, but it’s very theatrical—you get this perfect viewpoint, and its somehow believable that you’ve left the city,” Ernst says. “That’s the kind of experience I was trying to capture.”

Indeed, Ernst’s plans, presented to the Society in 1989, could get visitors benignly lost inside loops of distinct natural settings. You entered and left the zoo near a gift shop (of course). To your left, and visible from the road, would be the zoo’s mainstay residents: bison. Coyotes and prarie dogs and chickens would round out that opening grassland area.

You could then head down, past the rocky waterfall, into the deciduous home of whitetail deer, right next to native bears. Split off a bit to the south and there are lynx, but you might keep moving into the boreal forest, where the caribou roam, right next to the gray wolves that would love a chance at them. Just to the north are cliffs more than thirty feet high, housing mountain goats, Dall and bighorn sheep, hawks, and elk. Round the heights and keep strolling through the wetlands, and now you’ve looped back to the grassland. If you moved too fast, you might have missed the bird house, the arctic fox, the burrowing owl, or a very of-its-time forest fire exhibit.

The renovated zoo would have cost $8 million for thirty exhibits with twenty-six different animals. There were plans for a large family restaurant franchise on the site, and an intent to rent out out the vista building for events. Along with gift shop revenues, corporate sponsorships, and “a very minimal admission,” the zoo seemed intent on supporting itself. “If we had $8 million, I could have you a zoo built tomorrow,” Society board president Lozinsky told the Niagara Gazette in 1994.

Could a modest, subsidized zoo have survived on a somewhat remote stretch of Niagara Falls Boulevard, and succeeded as a family attraction in this modern age? Could it have operated under modern, much stricter zoo and animal regulations? A specialty consulting firm from Wichita, Kansas, Zooplan, assured the board as much, Christy says. And Ernst believes a redesigned zoo could have competed for children’s interest, even today. “Zoos can do really well, especially if they’re family events,” he notes. Look at the Lincoln Park Zoo in Chicago—the biggest annual draw of any zoo in the country. The biggest draw inside is the milking exhibit. You just milk the cows, but it works.”

Ernst’s firm was noted as the architect for a reopening zoo on a sign that went up on the property soon after his plans were announced. That sign was found leaning against one of the few remaining structures when a WGRZ reporter visited the property in 2010. Next to an outline of a Sitka deer, the sign’s lettering read “Oppenheim Zoo: Rebuilding for Our Community’s Future.”

“The zoo of tomorrow starts today”

Before any zoo could be built, there was the drainage to address. Throughout the mid-1990s, volunteer engineers and construction crews dedicated about 3,500 hours of labor to dig a retention lake next to the zoo. The 65,000 cubic yards of earth were piled on the zoo site to improve drainage and create mountain-like elevations.

All the while, the Society pitched a new Oppenheim vision to the public and sponsors. A website for the zoo was updated nearly every year starting in the mid-1990s, with graphics declaring that “The zoo of tomorrow starts today” and promising an eventual tour of a “Virtual Zoo.” When the Buffalo Zoo considered relocating and expanding to a riverside spot in 1999, the Oppenheim board sent a proposal to instead move the zoo to Oppenheim’s land. It was met with angry public rebuttals from Mayor Anthony Masiello and silence from other parties.

The death blow might have been during the negotiations to relicense the New York Power Authority power plant in 2005. In exchange for allowing NYPA to harness hydroelectric power from the Niagara River for another fifty years, towns, schools, and agencies near Niagara Falls received sizable rewards: low-cost hydroelectric power, at least $5 million in direct payments, and millions more in capital funds for eligible projects.  Society members pitched the licensing committees with all their plans and detailed studies, but, Christy says, “Nobody picked it up.”

In May 2010, the zoo board passed a motion to dissolve itself and transfer the zoo’s remaining fifteen acres—by then just tall grasses, disappearing foot paths, and two standing buildings with frequent squatters—to Niagara County. But it was far from clear whether it could actually do that.

Oppenheim’s heirs

Oppenheim deeded the zoo property to the Zoological Society in mid-October 1944. What he meant to convey in that deed, and whether its conditions were met or could ever be met, is at the heart of a court argument that has gone on for three years, and was on appeal as of this writing. Oppenheim’s deed gave the zoo property to the Society “upon the express condition” that the land: “... shall thereafter be used for zoological and park purposes and for the support and maintenance of a zoo and park, and shall at all times be known as the Oppenheim Zoo and/or Park.”

In the event that did not happen, Oppenheim’s deed states, the land “shall revert to the Kiwanis Activities Corporation ... in fee simple, free and clear of said condition.” As such, Kiwanis filed suit when the zoo board attempted to dissolve and transfer the zoo land to the county.

Niagara Falls attorney Mary Maloney represents the Kiwanis Club of Niagara Falls in the Supreme Court case. Maloney, a two-time past president and ten-year board member for the Kiwanis Club, stepped down from the service club to press the case. She is plain about the Kiwanis Club’s position: Max Oppenheim believed in the Kiwanis Club, wanted it to have the zoo’s land if it could not be a zoo, and the Kiwanis Club should be able to sell it to support its many endeavors. Kiwanis, Maloney said, has had exploratory talks with “a company or organization” that would buy the land to create “something of benefit to the community, specifically an under-served segment of the community.”

“What Max Oppenheim desired, what he wanted to do, did not happen,” Maloney maintains. “He wanted us to have the land. He wanted us to benefit from it.”

What complicates Oppenheim’s desires and deed conditions is the “rule against perpetuities,” a common law concept that descends from Tudor-era British land rights disputes and is, in most attorneys’ opinions, exceptionally difficult to parse and get exactly right. The rule intends to prevent property from getting entangled in conditions that may be impossible to meet by any future owners, and seeks to have property come under another party’s control within “Twenty-one years after the death of some life (or lives) in being at the creation of the interest.” The nearest reference most people might have is a plot twist in the 1981 thriller Body Heat that relied on the rule, albeit vaguely.

Judge Michael J. Murphy ruled against the Kiwanis Club in a March 2013 decision. Murphy parsed Oppenheim’s will closely for key language and intent. In (very) brief summary, Murphy wrote that Oppenheim gave Kiwanis an interest in the zoo property that might not have been triggered for hundreds of years in the future, had the zoo been far more successful. Kiwanis’ interest in the zoo property, therefore, was void under the rule against perpetuities and, Murphy wrote, the Zoological Society owned the land free and clear.

The Zoological Society filed to convey the land to Niagara County just a few months after Murphy’s first ruling. The Kiwanis Club filed a motion to reargue its case on new points, along with an appeal to a higher court. While Murphy kept with his reading of Oppenheim’s will, he did note that the zoo board had not yet met the conditions necessary to transfer the property, and that the property may have Oppenheim’s original restriction of park use in place.

Robert O’Toole, attorney for the Zoological Society (and town attorney for Wheatfield), said the rulings and appeals leave the Society and zoo land in limbo. “The zoo really is in the odd place of trying to dissolve itself and wrap up its affairs, but is unable do so,” O’Toole says. “Until there is a final decision, as long as (the Society) has that property, the zoo will still technically exist.”

R. Thomas Burgasser, attorney for Niagara County in the case, would not comment much beyond citing Murphy’s rulings. He did say, however, that while it is ultimately up to the Niagara County Legislature, he believes it is the county’s intent to use the zoo land for recreational purposes.

Where the bison once roamed

Each of the three attorneys arguing the court case can recall fond memories of visiting the Oppenheim Zoo; Burgasser distinctly remembers donating pet turtles at his parents’ behest. Each of the former board presidents contacted for this article was recruited onto the post-closure Society board almost entirely out of belief in Oppenheim’s mission and respect for his ambition. Unlike most of the area’s would-be tourist attractions that make bright headlines and flame out soon after, many people still feel a twinge of regret about the quiet death of the modern Oppenheim Zoo plan.

“It was never going to be a zoo that rivaled the Buffalo Zoo,” Lozinsky, the late-1980s board president, says. “But to have a manageable zoo, something that would make Niagara County and Max proud? That seemed possible.”

“We really got into it for a couple of years,” Christy says. “We made a serious effort to plan out a zoo at the right size, to make it appealing to the right audience. But there was only one time and place to get it done, and it didn’t happen.”

“Max Oppenheim just up and opened a zoo on his personal property, because he thought kids here should have a zoo. I really don’t think you can do that today, and it’s amazing he could do it then. You just can’t turn back the clock, though. You can’t.”

Note: Click over to our online supplement of maps, news clippings, web archives, and more details on the Oppenheim Zoo for more on the Oppenheim legacy.

Frequent Spree contributor Kevin Purdy is a freelance writer and co-organizer of TEDxBuffalo.

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