Kennebunk voters could cast ballots Nov. 2 on whether to release the town’s right of enforcement – one that it didn’t know existed until recently – on a deed covenant concerning Barnard Tavern.  The permitting process of the Historic Preservation Commission would remain in effect. Dan King photo

KENNEBUNK – The select board has agreed unanimously to have voters decide in November whether to release the town’s right of enforcement of a covenant in a deed involving Barnard Tavern. The board and town were unaware of the covenant until recently.

At its July 20 meeting, the board also voted 6-1, with board member Frank Paul opposed, to have an independent look at the structure, reasoning it would assist the Historic Preservation Commission as they contemplate an application by the owners, Randy and Keri Gates, to deconstruct and reconstruct the old building. Blake Baldwin, board chair, said it would also assist Jo Johnson, who placed the covenant in the 2016 deed  to the company that purchased the property, in her decision-making.

The covenant in the 2016 deed from Johnson, as trustee of the Johnson Property Trust, to C & K Realty Corporation, stipulates the late-1700s tavern cannot be torn down. The covenant does not appear in the February 2021 deed from C & K Realty Corporation to the Randy and Keri Gates.

“If the town has it evaluated and it is not salvageable, I will release the covenant,” Johnson told the select board.

If that were to take place, the Nov. 2 vote would not be necessary.

The Historic Preservation Committee was expected to discuss Barnard Tavern at its meeting on Wednesday, July 28.

Randy and Keri Gates discovered after purchasing the property in February that the old tavern, built in the late-1700s, was not properly repaired following a mid-1970s fire. The damage was not visible to them until drywall and plaster were removed, Keri Gates said.

A structural engineer they later hired to examine the tavern turned up a number of deficiencies. According to the report by L & L Structural Engineering Services, some of the sills above the foundation are deteriorated in a location where a portion of the foundation is failing; the joists and beams on the second floor are “grossly deficient” and incapable of supporting the intended use; the beams on the second floor are fire charred and the roof beams are deficient, among other issues.

Keri Gates said after the mid-1970s fire there was never a proper structural analysis of the building.

“The last thing we wanted to do is tear that house down,” she told the select board. Keri Gates said she may be from away, but her ancestors, the Day and Littlefield families, once owned the Barnard Tavern.

“This house is tired,” said Gates, adding if nothing is done and the tavern falls in on itself, the items they hoped to salvage and use in reconstruction likely won’t be able to be saved.

A removal of the deed restriction does not take away the Historic Preservation Committee authority, Town Attorney Natalie Burns told the board. The Gates’ would need approval from the HPC to proceed with any deconstruction and reconstruction. She noted the town covenant is a right of enforcement, not an obligation of enforcement. She said there is some question whether the committee could proceed with the application, given that the covenant exists.

“It seems we want the Gates’ to succeed and preserve, as best they can,  an historic building in this community,” said Baldwin.  He said putting the matter on the ballot would not slow the process down, as other matters, like the later decision to hire a professional to peer review the structural report, were proceeding.

Johnson said she had been talking to Kennebunk’s code enforcement office and others in the town hall for several months, looking for guidance.

She said if the engineer the town hires and the Historic Preservation Committee “both feel the Barnard Tavern cannot be saved and will agree with whatever is presented to them as the way it should be taken down,” she will release the covenant.

The tavern was built by Joseph Barnard in the late-1700s. Barnard, who drove the first mail coach from Portsmouth, New Hampshire, to Portland in 1787, and later became Kennebunk’s second postmaster, operated a hotel there until his death in 1817. His widow, Rachel, ran the tavern until 1823, when she sold it to Timothy Frost. He operated it until 1853. The property became a farm during the Civil War, later became a rooming house, and later still a family home. It has been vacant for the past several years.