ELK RAPIDS — Village Council members last week re-confirmed their support of a planned library expansion, though a real estate attorney says deed restrictions placed on the property decades ago, could imperil the project.
“First, does the leased use by the Elk Rapids Village Council to the district library violate the restrictive covenants in the deed? Summary: It does,” attorney Scott Banas said.
“Second, does the proposed library expansion project further violate the restrictive covenants in the deed? Summary: It does,” he added.
The legality of the arrangement joins a list of controversies faced by the Elk Rapids District Library Board in recent months, as residents, the library director and some board members object to what they say is an ongoing lack of transparency in board decision-making.
Scott Howard, a Traverse City attorney consulted by the village in 2017, said in an email to Village Manager Bill Cooper, that a library and a district library were one and the same as far as the deed was concerned and that a district library was an acceptable use.
Banas, who lives in Elk Rapids, said he studied the deed, the lease and related village ordinances after fielding questions from residents — some of whom he acknowledged not only oppose the expansion, but question the motives behind it.
Details of the
“This library expansion project remains controversial amongst some of the residents, who think it’s being pushed in order to facilitate enlarging the harbor,” Banas said. “Maybe it does make the harbor expansion more attractive and easier to pitch,” he said. “But guess what? Boaters aren’t residents.”
The Village Council voted in September 2018 to approve the library’s plan to raise $5 million from private donors to fund an expansion, and various records show between $1.6 and $1.8 million has so far been raised from hundreds of donors.
Enlarging the Edward C. Grace Memorial Harbor has been a topic of discussion in the coastal community, though there are currently no plans to do so, said Village Council President Jim Janisse.
“The first plan is for a breakwall, which is millions of dollars,” Janisse said. “There’s zero talk of any impending harbor expansion.”
A 2014 draft master plan for the harbor listed boat slips, restroom facilities and parking as needing upgrades and expansion.
A 2017 five-year draft recreational plan makes the same observation.
“Edward C. Grace Memorial Harbor currently doesn’t meet the demand of both transient and seasonal boats,” the plan states. “The harbor has developed goals and objectives to investigate feasibility of expansion of the Lower Harbor.”
The Lower Harbor is a stone’s throw from the library and the Upper Harbor is within easy walking distance, though how expanding the two facilities might someday complement one another has yet to be formally — or publicly — discussed.
“There were people in 2014 who wanted to say unequivocally, not to ever expand the harbor and that just wasn’t right,” Janisse said, adding that expansion language was included in the above plans so the council could remain open to future opportunities.
Library lease spans decades
The 1998, 40-year lease agreement with the village as “lessor” and the library as “lessee,” makes note of the property’s location “relatively close to water” but withholds “riparian” or water access rights to the lessor, meaning the village, documents show.
The lease of Island House also states the village retains rights to the surrounding land, “for general recreational purposes as the village, in its sole discretion, may deem appropriate.”
A meeting Tuesday between Janisse, Cooper and Chuck Schuler, a member of the library board’s building committee, had been in the works for nearly a year with each side pointing fingers at the other for the delay.
Janisse said a simple amendment to the current lease could accommodate the library’s expansion, while Building Committee Chair Dick Hults, who didn’t attend because of a scheduling conflict, said there were complex issues yet to be worked out.
A triangle of library-related legal documents now under discussion —the deed, the lease and village ordinances — has a history stretching back seven decades.
In 1948, philanthropist Katharine Dexter McCormick deeded the building, named “Island House,” and the property it sits on, “forever in trust, nevertheless for use by said Village and its residents as a library, park, place of assembly, village hall or community center,” the deed states.
McCormick had just inherited between $30 and $50 million after the 1947 death of her husband, Stanley, whose family founded a farm machinery company and sold it to International Harvester.
Village residents were the beneficiaries of Island House and the Village Council agreed to act as trustee.
In 1989 the Michigan Legislature passed the District Library Act, the village’s small local library became the Elk Rapids District Library, officially adding residents of Milton and Elk Rapids townships to the facility’s service area.
Banas, who was an aide to State Senator William Faust (D-Westland) when the Act was passed, said changing the library without voters first passing a referendum, violated the deed.
Traverse City Attorney Karen Ferguson offered a similar opinion to a nonprofit group in 2018, both of which are contrary to Howard’s 2017 opinion that a district library was a legal use.
“I was on the council at that time,” Janisse said. “We decided the people of Elk Rapids elected us, and once an organization came to us and said they wanted to expand the library, we decided that we did not need a referendum, we can make this decision.”
Negotiating a new lease
Janisse and Library Board Vice President and member of the board’s building committee Chuck Schuler met on Tuesday to discuss the lease and the operating agreement.
The issue is on the agenda for the next meeting of the library board, which will take place Thursday.
An effort by Liz Atkinson, appointed to the library board by Milton Township, to urge formation of an ad hoc committee to examine how the deed, the lease and village ordinances relate to one another has yet to find support, she said.
“There seems to be a power struggle between the original covenant restrictions of the deed and any lease agreements with the village,” Atkinson said. “Whatever they come up with at this latest meeting could go against ordinances they (the village) have passed.”
The issue doesn’t have a tight deadline — the current one doesn’t expire until 2038— but the question of whether use as a district library and plans for the library expansion are legal isn’t going away, Banas said.
“What would happen if, say, six residents got together and asked a judge, what is our remedy? I can’t say what a client would want, but I do think residents want more say in how the library is used and how this expansion project is going to be carried forward,” Banas said.
“Do we want an elec- tronic gizmo room for the teenagers of boaters? Maybe not,” he said. “Maybe we want some- thing else.”