Cape Elizabeth settlement on shoreland access could lead to another lawsuit

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CAPE ELIZABETH — The Town Council will hold a special meeting Sept. 19 to vote on a proposed settlement with waterfront residents over a paper street between Pilot Point Road and Broad Cove.

The council heard two hours of testimony from residents about the $500,000 deal during a Sept. 10 public hearing, with some urging councilors to accept the settlement and others warning that doing so may lead to another legal challenge.

Councilors also unanimously voted Monday night in favor of establishing an Energy Committee to promote “municipal and community energy efficiency, conservation, and sustainability goals.”

Paper streets are roads that were laid out in subdivisions, but never built or accepted by the town. Last November, rather than permanently accept or vacate rights to paper streets shown 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.

Town officials reached the settlement in a July 19 mediated session with residents who sued the town in January, claiming ownership of the undeveloped strip of Surfside Avenue that runs along the coast behind their property on Pilot Point Road.

The 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.

Under the proposed settlement, the town would vacate any claim to the 800-foot section of Surfside Avenue, which would eliminate the possibility of future development.

In return, the residents would pay $500,000 to the town’s Land Acquisition Fund, drop the lawsuit, assume ownership of the land and pay taxes on it.

Accepting the agreement would upset more than 1,400 residents who signed a petition asking the council to protect the public’s right to use the Shore Acres pathway, and the possibility of it being developed for public access.

During a meeting last month, Town Attorney Durward Parkinson said it is still unclear whether a path could be built, and added he’d expect an attempt to create one would be challenged in court.

On Monday, Parkinson said the settlement was the best deal for the town, but acknowledged that many would be unhappy with it.

“Like any complicated legal case, there’s rules for a difference of opinion,” Parkinson said.

Monday night’s public hearing proved this to be true.

David Lourie, of Spurwink Avenue, urged the council not to “give up” and defend the lawsuit, saying the town has a “strong case.”

Many opposing the settlement said the paper street was a town asset that should be preserved in its entirety and worried that accepting the deal would mean the town could be bought by what one resident called “entitled, un-neighborly people,” and set a bad precedent.

Victoria Volent, of Cottage Farms Road, predicted that the precedent would lead to further lawsuits.

Paul Moson, of Trundy Road, said accepting the deal would not save the town thousands of dollars in legal fees, but would subject them to new legal challenges.

“We’ve started a GoFundMe site and money is starting to pour in … If we have to sue, we will sue,” Moson said, speaking on behalf of those who signed the petition, several of whom are residents of the 115-home Shore Acres subdivision.

As of Sept. 13, the Save OUR Shore GoFundMe page had raised just over $2,000 of it’s $100,000 goal.

As it stands, the public does not have any right to access the land, only incipient – or as Parkinson classified them, “yet-to-be-born rights” – should the town accept the paper street.

However, the deal would require abutters to ensure that any implied rights to the path held by Shore Acres residents would be protected.

Some asked that the council hold off on accepting a settlement agreement and, instead, let the issue be settled by residents by sending it to referendum.

Those in favor of the settlement asked councilors to accept the deal and put an end to the contentious battle. Former councilor Jamie Wagner called it a “win-win.”

Daryl Hemeon, of Avon Road, sympathized with the plaintiffs, saying that if a path were eventually developed, it would run right through their backyards.

“Give some peace back to the neighborhood,” Hemeon said. “… The area of the path in question isn’t so much a path it’s people’s backyards … That’s what this is about. It’s people’s lives.”

Heather Bowns, of Wildwood Drive, asked the town to make a decision on “sound, fiscal responsibility.”

“We believe you are throwing away taxpayers’ money on an 800-foot rocky coastal path that may never come to fruition,” she said. “The owners involved have worked with you to solve this problem. Please work with them.”

Energy Committee

The Ordinance Committee drafted language for a standing Energy Committee, which the council established Monday night.

The seven-member panel is an “outgrowth of the ad hoc Alternative Energy Committee, which met (in 2016) to explore opportunities for alternative energy for municipal and school buildings and vehicles,” according to the town’s website.

The committee will be in charge of researching, evaluating and recommending energy options, conducting public education to promote goals around energy efficiency and sustainability and collaborating with neighboring communities to pursue these goals.

Garvin said he would not “stand in the way” of the committee’s establishment, but thought it made more “strategic” sense to combine the Energy and Recycling committees into one “Sustainability Committee,” modeled after those in surrounding communities.

Still, Garvin and the five other councilors present supported the Ordinance Committee’s recommendation.

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

Plaintiffs with waterfront property on Broad Cove in Cape Elizabeth have agreed to drop a lawsuit claiming ownership of a so-called paper street and pay the town $500,000 in return for the town vacating any rights to an undeveloped portion of Surf Side Avenue. The council is expected to vote on the proposed settlement during a special meeting on Sept. 19.

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