Cape Elizabeth council urged to adopt shoreline access protection

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CAPE ELIZABETH — The Town Council will decide Feb. 11 what to do about a proposed ordinance amendment that would prohibit the seven-member panel from releasing public rights to the town’s shoreline by a simple majority vote.

Councilors held a public hearing Wednesday, Jan. 23, on the petition to require a super-majority of five affirmative votes. Ten residents spoke in favor of the amendment; none spoke in opposition.

The Town Charter requires the council to set a date for a voter referendum on the petition within 30 days after the hearing. They also have the option to enact the ordinance themselves, but can’t simply deny it.

The “Petition for Enactment of Ordinance to Limit Disposition of Shoreline Real Estate” – submitted earlier this month by the Save Our Shoreline Access Coalition – would amend the town’s conservation ordinance to prevent the sale or disposal of real estate that provides direct or indirect access to shoreland, and whose retention has been recommended by an authorized town committee, unless approved by five of the seven councilors, or by a public referendum.

The grassroots group formed during an ongoing dispute over whether the town should accept or vacate its claim to various paper streets – roads laid out in subdivisions, but never built or accepted by the town. Vacating would mean the town forfeits its right to ever develop the streets for public access.

Richard Bryant of Spurwink Avenue, the attorney representing the Save Our Shoreline Access Coalition, noted during Wednesday’s hearing that after the town acquired Fort Williams in 1964, there was a 15-year period where the council considered alternative development proposals, ranging from a science park to low-income housing. Finally, the council designated the fort a town-owned park in 1979 by a 4-3 vote.

“Fort Williams was saved by a single council vote,” Bryant said. “So the whole notion that a simple majority of the council could make a mistake that in retrospect has a huge ramification is one of the driving forces behind my support of this initiative.”

While drafting the amendment, Bryant said he aimed to make the language “broadly applicable,” rather than tied to “narrow, technical definitions.”

Further, he said, it maintains the council’s ability to allow disposition “when it makes sense” and doesn’t hinder “rational functioning of town government.”

According to Town Clerk Debra Lane, the petition included 913 signatures, but only 836 were certified – three more than the 833 required, which represents 10 percent of registered voters. According to a memo from Lane, the invalid signatures were either duplicates, illegible, or not from registered voters.

Those who addressed the council Wednesday asked councilors to enact the ordinance amendment themselves, rather than send it to referendum, as a cost saving measure.

SOS President Jodi Breau said the council should not “kick this further down the road.”

The town for several years has wrestled over public rights to seaside paper streets. In November 2017, rather than permanently accept or vacate rights to paper streets shown in a 1911 plan for the Shore Acres subdivision, the council opted to maintain the rights, which were extended 20 years on Oct. 5, 2016.

The town hired a moderator to hold public meetings in an attempt to reach a community-wide consensus on the subject. But, in January 2018, several residents sued the town, claiming ownership of an undeveloped stretch of Surfside Avenue along the coast between Pilot Point Road and Algonquin Road.

Under a settlement agreement, which was reached in a mediated session between the plaintiffs and Town Council representatives, the plaintiffs would have dropped the lawsuit and paid $500,000 to the town’s Land Acquisition Fund. In exchange, the town would have had to vacate its rights, which could limit public access.

But following a public hearing, the council last September rejected the settlement and the litigation has continued.

Former Councilor Mary-Ann Lynch said she doesn’t normally “and philosophically” like ordinances that “tie your hands,” but she signed the amendment petition because she feels the council has not responded to the overwhelming display of public support for accepting paper streets.

“I personally felt there was no alternative left to the public to convey our concern,” she said.

Breau noted that this is the second petition SOS has submitted to the town – the first, which circulated last year, was signed by 1,400 asking councilors to accept Surfside Avenue, Atlantic Place and Lighthouse Point Road paper streets.

“Cape citizens are telling you to protect and preserve public shoreline properties in all (their) forms,” she said.

Council Chairman Jamie Garvin thanked those in attendance Wednesday for their input and said there will be more opportunity for public comment on Feb. 11.

Jocelyn Van Saun can be reached at 781-3661, ext. 183 or jvansaun@theforecaster.net. Follow her on Twitter @JocelynVanSaun.

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