A proposed conservation easement over Fort Williams Park suffered another defeat last week as the Fort Williams Advisory Commission unanimously rejected it, citing a legal opinion describing problems with the idea.

The Fort Williams Charitable Foundation presented a draft of the easement at a Town Council workshop last month. The council did not support the idea, but asked the seven-member, Town Council-appointed commission to weigh in.

The foundation, created by the Town Council in 2001 to generate private funding for the park, first began considering a conservation easement while developing a five-year fund-raising strategy, which includes creating a $4 million to $5 million endowment fund. The foundation was concerned that the park lacked the proper level of protection, which it said was a barrier to attracting major donors.

While some members of the commission thanked the charitable foundation for bringing up the topic of permanent protection, others criticized them for the process.

Commission member Ellen Nadeau said the process has been enlightening since no one really knew what protections existed over the park, with town management seemingly unaware of some.

Commission member John Snowden said the foundation was not aggressive about their fund-raising efforts and went too far by asking for the easement. “If we took fund-raising out of the picture, would the issue have ever come up? No,” Snowden said. “The genesis of this is where I have a problem.”

Commission member Chuck Wilson said many local entities are successful fund-raisers without “giving away the farm, so to speak.” He said the reason the town should want to protect the park “is not for fund-raising.”

Joel Russ, one of the directors of the foundation who attended the meeting but was not allowed to speak, said afterwards that the process “has precipitated very important discussion in this community.” The foundation has said it would like a public hearing, but neither the council nor the commission has yet supported the idea.

A major influence on the commission’s decision to oppose the proposed easement was an Aug. 16 letter from Thomas Leahy, the town’s attorney, to Town Manager Michael McGovern, raising several legal concerns.

The conservation easement would be granted to the Cape Elizabeth Land Trust, a private corporation, not an elected body, which Leahy said would have the right to transfer the conservation easement to another organization. Also, there are no legal obligations for the land trust to consist of residents of Cape Elizabeth, nor any legal requirement for future holders of the easement be composed primarily of Cape Elizabeth residents, Leahy said.

The Town Council currently has full control over the park, and six out of seven councilors want to keep it that way.

Commission Chairman Charles McCarthy does, too, saying the highest protection is leaving the park in the hands of the people of Cape Elizabeth. “I’m willing to leave the total fate of the fort in their hands,” he said.

McCarthy said the land trust does a “great job,” but “I’m not about to favor giving something I own to someone without the same ownership. … I would not do this to my own property.”

Wilson said he was “absolutely opposed” to giving away rights to the park to an unelected body. “I want to be able, at least, to express my pleasure or displeasure for them in a discussion of this magnitude.”

Leahy said a section of the easement to protect 42 acres of the park that are under federal grant restrictions barring an easement held by a non-profit could be voided in court. And the easement would make the rest of the park ineligible for federal grants, according to the preliminary opinion of Mary Vavra, an outdoor recreation planner with the National Park Service.

Wilson said he was “absolutely convinced” that the granting of this easement “would serve as a bonanza for lawyers.”

If the land trust, or any future holder of the easement, disagreed with any future decision by the Town Council it could challenge the council, Leahy said.

“It’s not going to solve any problems, it’s going to create more,” Wilson said.

Some members of the commission raised with trepidation the possibility of a campaign by the foundation to get a referendum on the ballot. Commission member Tina Harnden said she would “hate to see” that happen.

Russ said a referendum is not being considered right now, but is “one of a host of options.”

Commission members were open to more discussion about protecting the park, but Harnden said her “gut reaction” is the park does not need an easement.

If there is a way to secure additional protection for the fort “it ought to be very, very simple,” Wilson said. “If it can’t be simple, we shouldn’t be bothering with it.”