Whether Fort Williams Park – a place most people think of as a protected public space – is actually permanently protected is now in dispute, with lines being drawn between a town-founded charity and the Town Council.

The Fort Williams Charitable Foundation and the Cape Elizabeth Land Trust believe a conservation easement held by the land trust would offer the greatest possible protection, while six out of seven town councilors believe that keeping the park in the hands of the town offers the best protection against sale or development.

The foundation was formed by the town in 2001 to generate private funding to make the park self-sustaining. The foundation, which is independent of the town government, first raised the question of permanent protection while developing their five-year fund-raising strategy, which involves the creation of a $4 million to $5 million endowment fund to generate investment income to fund the park’s maintenance.

During this process the foundation discovered that no deed restrictions or easements offered what they consider “permanent protection” over the fort. All they found were a 1976 Town Council dedication of the park as permanent open space and a local zoning ordinance protecting the park. But they were concerned because both the council dedication and zoning ordinances can be overturned by a simple majority of the Town Council.

With such a large fund-raising goal the foundation has said it is necessary to have some sort of formal “permanent protection” over the park that will assure major donors their generous donations are going towards a park that will always be there. Numerous fund-raising experts and consultants were contacted, all of whom supported the need of “permanent protection.”

In a June letter provided to the Town Council, fund-raising consultant Tina Mattingly of Falmouth wrote that in the case of a major fund-raising campaign such as the one the foundation wants to embark upon, “90 percent of the funds secured will be provided in significant leadership gifts, and the people who provide these gifts are savvy philanthropists who will want to know that the landscape they are endowing will be forever protected with an ironclad easement. As it stands right now, this is not the case.”

At that point the foundation began developing the idea of a conservation easement in collaboration, which they believe would serve as the highest level of protection possible for the park.

Many layers

The majority of the Town Council disagrees, believing instead that the best protection of the park is for it to remain in the hands of an elected body. There are also multiple layers of protection they feel are adequate.

Cape Elizabeth acquired Fort Williams from the federal government for $200,000 on Dec. 1, 1964. The future use of the military installment was debated and considered for everything from low-income housing to a college campus.

In 1974 the Town Council developed a Fort Williams Study Committee and two years later acted on their recommendations and adopted the basic statement that “Fort Williams is a unique community resource which has irreplaceable scenic, natural and historical qualities. As such it should be dedicated to predominately park, recreational and cultural uses.” They permanently dedicated the shorefront and parade grounds, about 40 acres of the park, as open space.

Henry Adams was on the Town Council in 1976 when the policy was adopted. He said the original intent of the council was that the entire 92 acres would be permanently protected and remain forever as town property.

“As far as I remember there’s never been any question about it at all,” Adams said. “It’s protected, period.”

Adams admitted nothing is permanent though. “You get four rogue councilors and they could sell the place,” he said. But that would never happen, he said. The fort is so loved by Cape Elizabeth residents that if any councilor ever thought about selling or developing the property, “they’d be descended upon like a ton of bricks.”

“As far as I’m concerned it’s fully protected,” Adams said. “Right now I see no reason for the easement.”

A layer of protection the foundation was unaware of was a federal law protecting 42 acres of the park that have been affected by federal grants. Since 1974 the town of Cape Elizabeth has received four grants from the Land and Water Conservation Fund.

When Congress created the fund in the 1960s they wanted to make sure the program had a lasting effect on the recreational sites and facilities they helped fund. Therefore, they included a provision stating that areas assisted by federal grants of any size are to be permanently protected for “public outdoor recreational use.”

There is an option for conversion, which would mean that if the town were to develop some of the land funded with federal money, it would have to preserve land of equal market value and recreation usefulness.

“The LWCF Act is sold on permanent protection, but you do have that conversion caveat sitting in the background,” said Bud Newell, program manager of the grants and community recreation division for the Maine Department of Conservation. Whether or not you view the act’s restrictions as permanent protection is a “judgment call,” Newell said. “Because someone could always apply for that conversion and get approved.”

Easements restricted

Town councilors point out how unlikely it would be to find 96 acres of comparable oceanfront property to be used for recreational use that would be needed for conversion. The LWCF Act bars the land from being subject to easements held by non-profits. Newell said a conservation easement could be placed on the property if the easement holder is another municipality, the county or the state.

Since the foundation learned of these federal protections they have altered their draft easement to include a “springing” quality. Now the proposed easement would protect the approximately 54 acres not protected by the LWCF Act, but would “spring” into place to protect the rest if the federal restrictions were ever lifted. But, any changes to the LWCF Act would take an act of Congress, Newell said.

Another layer of protection the park has is the Real Estate Acquisition/Disposition Policy adopted by the Town Council last month. The new policy established a process for the sale of town-owned land that includes a referral to the Conservation Commission, public notices and a public hearing. At the Town Council workshop July 14, Town Manager Mike McGovern said the process could take over a year.

The debate boils down to who controls the park. The foundation has stated numerous times that all control over the park would remain with the council, but that the Cape Elizabeth Land Trust would have the authority to step in if there was ever a question over the appropriate uses for the park.

Adams is worried the land trust might not always be around. He wonders what would happen if somewhere down the line it joined with the South Portland Land Trust, then they joined with the Portland Land Trust, then a Maine Land Trust, then all of a sudden a New England Land Trust. That could mean someone down in Massachusetts thinking about selling the fort, he said.

“There will be tighter control of the fort if those reins are held by those seven town councilors,” he said.

The question of whether a public hearing will be held on the subject will be considered by the Fort Williams Advisory Commission at their meeting at 7:15 p.m. on Thursday, Aug. 18, at the Public Works building on Cooper Drive.