Cape Elizabeth faces 2 lawsuits over paper streets

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CAPE ELIZABETH — Town Council Chairwoman Jessica Sullivan’s prediction that the town would face litigation regardless of what it does about paper streets has proved.

Two lawsuits were filed against the town Friday, Jan. 26, claiming the council took too long to decide whether to permanently accept or vacate paper streets on Surfside Avenue and Atlantic Place –  roads laid out in subdivision plans, but never built or accepted by the town.

The suits come as the town plans to host two facilitated discussions for residents invested in the long-running debate over the streets and shore-front access.

The first lawsuit was filed by plaintiffs Imad and Hulda Khalidi, David and Kara Leopold, Andrew Sommer and Susan Ross, Stewart and Julie Wooden, and Rock Dam Development LLC, all of whom own property on Pilot Point Road.

Attorney John Shumadine, of Murray Plumb & Murray, represents the group.

Surfside Avenue has two separate sections known as the “Pilot Point section” and the “Algonquin section.”

According to both suits, the Pilot Point section, which runs parallel to Pilot Point Road, has never been utilized as a roadway and is inaccessible from all established roads.

The Algonquin section is a partially gravelled path that runs from Pilot Point Road to Algonquin Extension – a private road maintained by abutting landowners.

As landowners of property abutting the Pilot Point section of Surfside Avenue, the plaintiffs’ claim that rights to the streets must be accepted within a reasonable time and, for the town, that time has lapsed.

“The Town lost its right to accept the incipient dedication of the Pilot Point Section of Surfside Avenue when it failed to accept the incipient dedication within the past 106 years,” the complaint states.

Last November, rather than permanently accept or vacate rights to paper streets, laid out in a 1911 development plan of the Shore Acres subdivision, the council opted to maintain the rights, which were extended 20 years on Oct. 5, 2016.

The complaint also says the Legislature never intended to “provide municipalities unlimited rights to extend their rights over over proposed and unaccepted ways for all time merely recording a reservation of rights once every 20 years.”

The plaintiffs also posted a letter to Cape Elizabeth residents, signed by the “Shore Acres Preservation Coalition,” outlining the lawsuit.

“It is time for an official ruling to resolve this matter, so we can finally have peace in our homes,” the letter states. “… A facilitator cannot make the necessary legal determination to resolve this five-year nightmare. Another open-forum meeting will likely aggravate tensions further and cannot settle the fundamental legal issues that separate the town and the residents who abut the paper street.”

Good Group Decisions LLC was scheduled to facilitate discussions between residents Feb. 1 and Feb. 3, with the hopes of coming to some sort of common ground.

The second lawsuit suit also poses the argument that a reasonable amount of time to accept or vacate streets has lapsed.

The plaintiff, Pilot Point LLC, owns real estate property along Surfside Avenue and will be represented by attorneys David Soley, Mary Costigan and James Monteleone, of Bernstein Shur.

Both complaints state that, if the court finds the town’s right to accept streets has not lapsed, the town may only accept rights to the streets as proposed in 1911, prohibiting them from “altering the location, construction, or usage of the proposed roadway to become a trail of other type of public recreational space.”

Residents of the Shore Acres neighborhood have exercised implied rights to the graveled, Algonquin section of the paper street with consent from the abutting property owners.

Attorney Durwood Parkinson represents the town in both suits.

“I expect that the two cases will be consolidated moving forward in the litigation,” Parkinson said in a Jan. 30 email. “These claims have been asserted before in the public hearing process, but now will be decided in the courts – unless of course a mutually acceptable agreement can be reached in the mandatory mediation process. ”

Parkinson added that he will update and advise the council on the litigation during an executive session scheduled for Feb. 12.

Sullivan, the council chairwoman, in a Jan. 30 email said she has “publicly stated that I anticipate a lawsuit regardless of any action taken by the town regarding the paper streets at issue. Due to what is now active litigation, I am not at liberty to say anything else.”

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

Signs along Ocean House Road in Cape Elizabeth encourage residents to attend facilitated discussions about paper streets. Two lawsuits were filed by residents who claim the town failed to permanently accept the streets in a reasonable amount of time.

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  • Mainer1

    Just makes it easier for the lame council to do nothing.

  • farmertom2

    Yeah, these suits will not prevail. As long as paths are used continuously for a fairly short time (as little as seven years) Maine law recognizes them as access routes.