Cape Elizabeth raises threshold for release of public shoreland access

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CAPE ELIZABETH — The Town Council adopted an ordinance amendment that will prohibit the seven-member panel from releasing public rights to the town’s shoreline by a simple majority vote. 

The amendment proposed by a petition submitted in January by the Save Our Shoreline Access Coalition will go into effect March 13.

It will amend the town’s conservation ordinance to prevent the “sale, release, transfer, conveyance or other disposition” 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 coalition formed during a 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.

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.

Per the Town Charter, the council had 30 days after a public hearing – which they held Jan. 23 – to set a date for a voter referendum on the petition or to enact the ordinance. They did not have the option to simply deny it.

The vote Monday night, Feb. 11, was 5-1, with Chairman Jamie Garvin in the minority. Councilors Chris Straw and Caitlin Jordan noted the council also has the authority to amend the ordinance after it is enacted.

“We could change it tomorrow if we needed to,” Jordan said.

Straw said he felt the ordinance is “too permissive,” and would like to see a better definition of “shoreland areas” and “direct access.”

Garvin said he agrees with the “spirit” of the petition drive, but has a “fundamental disagreement” with “elevating any issue above anything else.” He noted that the only other actions that require a supermajority vote in Cape Elizabeth are enacting an emergency ordinance and suspending the council rules.

“There’s lots of other high-priority … and (high-)visibility things and things of great consequence and importance that come across our agenda and for none of those things we would require a supermajority vote,” Garvin said. “We could hire or fire a town manager … (or) vote on $40 million budgets with a simple majority. I see no reason why this should be any different.”

Further, he said he believes if the town “truly wanted to codify this,” doing so through the Town Charter would have been a better way to go.

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.

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.

Last September, the council rejected a settlement reached in a mediated session between the plaintiffs and Town Council representatives, in which 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.

At last month’s public hearing on the ordinance amendment, 10 residents spoke in favor of the amendment; many asked councilors to enact the ordinance amendment themselves rather than send it to referendum as a cost-saving measure. No one spoke in opposition.

Only two speakers took the podium Monday. The first was Richard Bryant, the attorney for SOS and the principal drafter of the ordinance amendment, followed by Jim Morra, of Waumbek Road.

“I have not seen any opposition to this ordinance change,” Morra said. “… This is not a controversial issue. Non-controversial ordinance changes do not need to go to a vote with its associated cost and delay.”

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

Cape Elizabeth councilors on Monday enacted an ordinance amendment that will make it harder for the town to limit shore access, as proposed by a petition submitted in January by members of the Save Our Shoreline Access Coalition. 

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