2016-10-28 / Front Page

Cape Elizabeth library reuse clears legal hurdle

By Duke Harrington
Staff Writer

CAPE ELIZABETH — A five-person committee charged with finding a new use for Cape Elizabeth’s original library building appears to have cleared a legal hurdle blocking that goal.

In an Oct. 13 legal opinion, town attorney Thomas Leahy of the Portland law firm Monaghan Leahy, said a deed restriction placed on the gift, reserving it “forever (as) a free public library,” applied only to the plot of land, not the building itself. However, it appears the town may still be in violation, given that the quarter-acre lot has long since passed from town hands.

The library, originally a one-room schoolhouse located on Bowery Beach Road, was given to the town in 1919 by William Widgery Thomas Jr., a lawyer, state legislator and U.S. ambassador, who taught there during winter 1857, while an 18-year-old student at Bowdoin College.

According to the transfer deed, “the said lot of land and the building from time to time thereon standing, shall always be held, occupied and used by the inhabitants of the town of Cape Elizabeth for the purpose forever maintaining thereon a free Public Library.”

As the population in the Spurwink neighborhood around the library dwindled, the decision was made to move the building to its current location in the center of town, off Scott Dyer Road.

That move came in 1944, just shy of the centennial anniversary of the building’s construction in 1849, as was due at least in part to wartime gasoline rationing that made travel to the increasingly remote Bowery Beach Road site burdensome to most residents.

A 1986 renovation expanded the library by grafting it onto the nearby Pond Cove Elementary School. That project was undone by a subsequent $4 million rebuild that created a new library using the Pond Cove skeleton, leaving the original schoolhouse once again a free-standing structure. The new library held its grand opening this past February and an ad hoc committee was formed to explore uses Thomas’ original gift.

Following a request for proposals, two ideas were submitted, one from the Cape Elizabeth Historical Preservation Society, which would like to use the building to house its collection, and the other from the school department, which hopes to turn it into a “collaborative learning space.” In fact, it could become both, as interim superintendent Howard Colter submitted a letter Sept. 30 saying school officials “no longer believe it to be in the best interest of either the town or the school for us to be granted sole use of the former Spurwink School Building.”

Instead, Colter said the school department was willing to share the building with the historical society and other groups.

Still, the committee needed to secure an all-clear on any deed restrictions before making a final decision on a tenant.

According to Leahy, use of the phrase “from time to time” and “thereon” placed the focus of Thomas’ restriction on the land, recognizing that the building itself may be rebuilt over time.

But when Leahy’s interpretation may absolve the town from any legal entanglements over reuse of the building, there is still the question of the original quarter-acre lot.

According to Town Manager Michael McGovern, no one knows for certain where the lot was located. The deed description placed it on the Great Pond side of Bowery Beach Road just south of Fowler Road, but a professional survey would be needed to map out the old lot lines. The land is now part of a 340-acre property owned by the Sprague Corporation and, McGovern said, is likely part of an easement afforded to the Maine Department of Transportation.

Leahy said the building appears to be unencumbered, but the town could remove all doubt by locating Thomas’ heirs and securing disclaimers from them. However, he said that process would likely cost between $15,000 and $30,000.

Leahy’s legal opinion only addresses his interpretation on deed restrictions as they apply to the building, not the lot itself, which appears to have been sold to Sprague Corp. by Emma Jordan, given that conveyance references property given to her by Thomas. “As such, it appears ownership of the lot is uncertain at this time,” Leahy wrote. “That is, the town appears to be the record owner of the lot despite the fact that the tax maps and the history of use indicate that Sprague Corp. has held the property, paid taxes on the property, and likely believes it owns the property.”

Whenever and however the status of the land is determined, Leahy said he is “satisfied” that ruling “would not adversely affect” the town’s interest in the building.

“My recommendation will be that the council accept the primary premise of the opinion and take no further action,” McGovern said.

The Spurwink School Committee will meet next on Nov. 9 at which time it is expected to vote on how to proceed.

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