Cape Elizabeth Town Council backtracks on ‘paper’ streets

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CAPE ELIZABETH — Faced with a large crowd on Monday, Aug. 14, the Town Council took unusual action and reconsidered last month’s decision on so-called paper streets.

The council also held a public hearing on amending the town’s Open Space Zoning Ordinance, which has been a topic of discussion since it was proposed in July because of its relationship to the approval of Maxwell Woods.

Councilors also prohibited retail marijuana establishments and social clubs, which were already on hold under a temporary ban.

Chairman James Garvin took time at the start of the meeting to address the public, reminding them not to show any outward sign of approval or disapproval during the meeting unless addressing the council from the podium.

Still, his gavel was put to use when the room of at least 60 residents erupted in applause after Councilors Penelope Jordan, Caitlin Jordan, Sara Lennon and Patricia Grennon apologized for action taken in July.

After hearing from the public since that meeting, the four councilors who voted to take steps to vacate paper streets on Surfside Avenue, Atlantic Place and Lighthouse Point Road acknowledged that, in hindsight, the process was flawed.

Paper streets are roads that were laid out in subdivisions, but never constructed or accepted by the town. In 1997 the state extended the town’s rights over paper streets by 20 years, to be re-evaluated this year.

Jordan moved to reconsider the item, which was a request from the Conservation Commission to have the council acknowledge receipt of the Commission’s Paper Street Technical Assessment Report and maintain the town’s rights to the streets for potential future use.

“I regret my July vote,” Penelope Jordan said. “Though technically legal, the council’s surprise July vote on paper streets did not give every councilor enough time to discuss and truly understand what was proposed. It also did not let the wider public know that we contemplated doing anything other than receiving a report.

“… I regret that I wasn’t confident enough last month in my thoughts and my ideas and that was a great learning (experience) and created a lot of angst for people throughout the town,” she said.

Residents of neighborhoods surrounding papers streets on Lighthouse Point Road, Surfside Avenue, or Atlantic Place had concerns at last month’s meeting on July 10 about increased traffic and a decreased quality of life if trails were developed.

Others countered that these trails should be accessible to the public.

At Monday’s meeting, several residents urged the council to consider potential trails on Lighthouse Point Road separately from Surfside Avenue and Atlantic Place.

A potential trail on Surfside Avenue and Atlantic Place is identified in the town’s 2013 Greenbelt Plan and was noted by the Conservation Commission as supporting goals of that plan, while a potential trail on Lighthouse Point Road was not.

Mark Flemming of Hunt Point Road, a member of the Conservation Commission, addressed the council Monday, although not as a representative of the commission.

“The Lighthouse Point situation is entirely different than Shore Acres, so I would recommend in going forward (the council) really separate those two issues,” he said. “They are two entirely different discussions.”

It took three votes for the council to backtrack. The first, to simply reconsider the July 10 motion, was approved 7-0. The council then unanimously opposed Councilor Caitlin Jordan’s July 10 motion to take steps to vacate the paper streets.

Finally, the council approved the original July 10 agenda item acknowledging receipt of the Paper Street Technical Assessment Report and agreed to hold a workshop with the Conservation Committee Sept. 6.

Open space zoning

Also Monday night, residents had the opportunity to address the council on a proposed amendment to the town’s Open Space Zoning Ordinance that would clarify a provision that agricultural land may be preserved as part of open space in a new development.

It states that the space must meet the requirements of “farmland” as it is defined in the state’s Farm and Open Space Tax Law. However, the land to be preserved under this subsection can be less than 5 acres and deemed “farmland” if it is part of a parcel of farmland that is at least 5 acres.

Residents are concerned the ordinance, proposed at the July 10 meeting, is being rushed through the amendment process to benefit a specific development, Maxwell Woods.

Kira Widoga, of Foxwood Road, suggested the council postpone a vote on the amendment, scheduled for Monday, Aug. 21, to allow for a “proper and transparent” government process and more time for residents to weigh in on the change.

Four residents followed Widoga to the podium to share their concerns with the timing and implications of the amendment.

According to Becky Fernald, of Mitchell Road, the council received a letter prior to the meeting from 111 residents asking that they delay the process.

“I think it’s premature for you to be voting on this tonight,” Fernald said. “This is not a simple clarification … this has long-term consequences on land use planning in town.”

After closing the public hearing, Councilor and Ordinance Committee Chairwoman Patricia Grennon invited Town Planner Maureen O’Meara to the podium to answer questions.

“Final subdivision review (of Maxwell Woods) is going to start likely next month, so if the Planning Board grants an approval, before (the council grants their) decision on this, there is a very strong likelihood that the developer would say ‘I don’t need the risk, I’ll just make it an open space easement,'” O’Meara said.

The risk would be a possible lawsuit if someone interprets the existing ordinance differently than the Planning Board.

According to O’Meara, Town Attorney John Wall believes the board’s interpretation – that a developer can have an easement of under 5 acres in size, as long as it comes from a farm that is at least 5 acres in size – is legitimate.

“But, he also said (the ordinance) could probably be interpreted another way,” O’Meara said. “Anyone can step forward and try to challenge it.”

O’Meara said waiting to adopt the amendment would be a missed opportunity to preserve agricultural land. With approval, developer Joel FitzPatrick would designate 2 of the 8 acres of open space in his development as an agricultural easement, to be farmed by the Bamfords, owners of Maxwell Farm. The 2 acres immediately abut land they farm.

“I think it is important to note that this amendment will not impact the design at all of the proposed Maxwell Woods project, should that be approved by the Planning Board,” Councilor Grennon added.

The council voted 6-1 to adopt the amendment, with Lennon opposed. She wanted to wait to vote on the amendment at the council’s Sept. 11 meeting to give the public more time for their questions to be answered.

However, Chairman James Gavin said there has been plenty of opportunity for public comment.

“With full notice of a public hearing tonight, I didn’t see anybody other than folks we’ve already heard from on this matter,” he said. “What I’m not understanding is where the waves of people that are coming to contest this (are).”


The council then approved 6-1 a motion to adopt a standalone marijuana ordinance prohibiting retail marijuana establishments and social clubs.

A public hearing was held, but no one stepped forward to discuss the marijuana regulations.

“I don’t agree with this ordinance as written. I think it should be broken down in a different way,” Penelope Jordan said.

The ordinance bans all recreational marijuana cultivation, manufacture, testing, retail sales and social clubs in town.

“I am more than open to re-examining this when anyone thinks they have a better idea,” Caitlin Jordan said after the vote.

Since the ordinance takes 30 days to take effect, the council also voted 7-0 to extend a 180-day moratorium enacted in March. The moratorium was set to expire on Sept. 8, but will now be extended until Sept. 14.

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