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CAPE ELIZABETH — Residents of South Street have appealed a unanimous decision by the Planning Board to allow a private road to be extended 80 feet from Aster Lane.
On June 13, plaintiffs Chris and Julie Munz, of 5 South St., filed suit in Superior Court against the town, Margaret Birlem and Noelle DeLuca, arguing that the Planning Board’s ruling did not adhere to town ordinance and “denied plaintiffs their rights to procedural due process.”
Birlem and DeLuca, who live in the neighborhood on Spurwink Avenue, requested the private road extension off Aster Lane – a public road – to create frontage for a buildable lot they purchased at what would be 8 Aster Lane.
On June 26, Birlem said she was confident in the board’s ruling.
“We went through a very rigorous process that ensures that all town ordinances and rulings and regulations are followed,” she said.
Town Attorney John Wall, of Monaghan Leahy, said he does not comment on the merits of pending cases, but the town intends to “defend the decision by the Planning Board and argue for its affirmance” in Superior Court.
When granting Birlem and DeLuca approval on May 15, the Planning Board noted that the applicants would be removing a chain link fence across South Street that might allow for a “minimal” increase in traffic, which “could be avoided or reduced with prominent signage.”
Chris Munz addressed the board to say that removing the fence and providing access from South Street to Aster Lane will be problematic for his son, who has epilepsy, noting that they bought a house on a dead end for that reason.
Birlem, however, said she had a traffic study conducted that indicated there would be “little to no impact” on the neighborhood.
Birlem’s attorney, Scott Anderson, also said the chain link fence is not in compliance with town zoning.
“Everybody in the subdivision has the right to go from that South Street right-of-way onto Aster Lane,” he said. “The gate … is an illegal structure either on top of a right-of-way … or on a public road.”
However, should the neighbors decide to, Anderson said a new fence could be erected, as long as they had a written agreement designating where the fence would be and how it would be maintained.
According to the appeal, on May 15, residents were not given an opportunity to comment on “substantial changes” to the applicants’ plans after they were presented, denying their “rights to procedural due process.”
The board’s approval was also contingent upon the installation of signage on Stephensen Street at the intersection with Hamilton Street and at the beginning of Aster Lane that states “Private Road, access for Stephenson Street and South Street residents only.”
The appeal argues that town ordinance prohibits the construction of a second home on the South Street private accessway and the applicants don’t have sufficient road frontage on Aster Lane to build the home.
Therefore, it states that the board’s approval contravenes the town ordinance that says a private accessway may only serve one developed lot and “any construction of the private accessway that is inconsistent with the approved private accessway plan shall require an amendment to the subdivision plan.”
However, Birlem said the “facts from every professional involved in the application process debunk that theory.”
Further, it states that the previous owners of Birlem and DeLuca’s land, Philip and Darlene Nedwell, created a private accessway extension of South Street with a 2004 Road and Easement and Maintenance Agreement, which limits the private accessway to land owned by the Nedwells.
Under the agreement, any property owner on the accessway has an “equal obligation to maintain the width and surface of the South Street Private Accessway.” However, the appeal notes an April 2 email from Town Planner Maureen O’Meara that said it’s “likely” the Birlem and DeLuca’s application would change their maintenance responsibilities for a section of South Street and Aster Lane.
Anderson said Birlem and DeLuca have a written agreement to maintain the portion of the road they’re planning to develop, which is currently gravel.
“The best possible upgrade to the road is what we’ll be paying to have done,” Birlem said.
According to the appeal, it was an “abuse of discretion” to approve the application as it “failed to adequately address” stormwater management, road construction requirements and traffic impact standards, “in light of the likelihood of a substantial increase in traffic by removing the gate” and the subdivision ordinance that requires safe vehicular and pedestrian travel and traffic patterns.
“We’re confident in the town’s process and we received a full Planning Board approval,” Birlem said. “We wish we could live in harmony with our neighbors, but we will respectfully go through with the process.”
Wall said briefing for the case will likely be completed by mid-September. Further out than that, he said the progress of the case will be dictated by the court’s schedule, “which can be difficult to predict.”
Chris and Julie Munz, of 5 South St., Cape Elizabeth, are appealing a May 15 Planning Board decision that would create access from Aster Lane to South Street.