Cumberland's beach acquisition draws more heat as purchase looms

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CUMBERLAND — With a developer and the town just days away from consummating a beach property acquisition endorsed by voters on Election Day, opponents continue to claim the deal is illegal.

Cumberland voters on Nov. 4 narrowly supported the town’s $3 million purchase of the Payson property at 179 Foreside Road. The vote was 2,372 to 2,126.

The Bateman Group, a development company, signed an agreement in June to buy the more than 100-acre property from the family of Marion Payson, which comprises Spears Hill LLC. Nathan Bateman said Dec. 10 that his firm plans to complete the purchase Friday, Dec. 19.

The town plans to buy its acreage from the developer immediately afterward, Town Manager Bill Shane said Dec. 10.

There are three homes on the land, and Bateman plans to build another seven, as allowed by a conservation easement.

The town’s purchase is nearly 25 acres, including 2,200 feet of shoreline and a 200-foot pier. Supporters have said the acquisition would accomplish a long-time town goal to provide public waterfront access. Funds for the acquisition would be bonded over 20 years, at a cost of $240,000 a year.

Opponents – including Spears Hill and some residents of the adjoining Wildwood neighborhood, whose private beach would abut the public land – have argued that the Payson beach is worth less than the purchase price; that other areas of shoreline access, with more potential for public use, can be found; that the sale proceeded too quickly and without sufficient transparency, and that recreation access at the property is not feasible.

In the latest attempt to derail the purchase, a Dec. 2 letter from attorney Scott Anderson to the Town Council, on behalf of Spears Hill, argues that a conservation easement on the property limits public use to avoid sensitive resources being damaged, and that the town’s planned use does not satisfy the easement’s overall purpose.

That use “constitutes a form of development above and beyond what is allowed under the Easement and as such compromises the careful balance between limited development and protection of the Property’s unique conservation attributes,” Anderson wrote. “There would be a significant increase in vehicle use (and new parking and road facilities to support such use) beyond what would occur in connection with ten residences.

“Thus, not only is the Town’s proposed use expressly prohibited by the terms of the Easement, but it is inconsistent with the narrow public use permitted under the Easement and the core ecological, habitat and resource values the Easement seeks to protect, and is prohibited on that additional basis.”

The attorney noted that while letters to the town have expressed concern about the legality of its proposal, “we have not seen a written response from the Town or any legal analysis by the Town demonstrating that its proposal is allowed under the Easement. In light of the legal issues raised by Spears Hill, LLC and others it would be reckless for the Town to proceed with a $3 million acquisition without a written legal opinion or court determination that it may develop the Property as intended.”

Anderson said Dec. 11 that the type of development proposed by Bateman is “clearly permitted” under the easement’s terms, and that the Payson family has no issue with that.

“The primary concern that the Payson family has is … the scope of the activity that the town is planning to do on the remainder of the property,” the attorney said.

Wildwood Association President Paul Evans echoed that assertion in a Dec. 8 letter to the Town Council.

“In view of the substantial challenge to the legality of the Town’s proposed use of the Payson Estate, it would be a disservice to the citizens of Cumberland for the Town to spend ($3 million) to acquire a portion of the Payson Estate, without having obtained prior, satisfactory assurances, in writing, that its proposed uses of that property are lawful,” Evans said. “… Conspicuously absent at this time is any written opinion from the Town’s own attorneys, or any other form of written assurance.”

The town wants to retain most parking in a 12,000-square-foot, 25-spot, gravel lot near Foreside Road, a half mile from the beach. Eight spaces in a 400-square-foot lot closer to the beach would be designated, with parking on grass, while four handicapped spots would be available at the access road’s turnaround loop. That loop could also be a drop-off area for cars that park near Foreside Road.

A buffer of 54 trees has also been proposed between the public area and Wildwood. A future bathroom facility could include a composting toilet.

An Ocean Access Committee was formed by the Town Council to meet with the town attorney on the conservation easement and protection of the natural qualities of the property, and ultimately to develop a facility use plan.

Denny Gallaudet, chairman of the committee, said at a Planning Board meeting Tuesday that “we really wish to honor this remarkable property by minimizing the human impact to the extent possible, but still provide access.”

His group has agreed by consensus to limit parking by the waterfront to two or three handicap spaces, he said, noting that “the idea is to encourage non-vehicular access” as much as possible.

Public input would be included in the facilities use plan, which would require approval by the Town Council and Chebeague & Cumberland Land Trust.

Penny Asherman, president of the trust – the Payson property’s steward for 17 years – told the town in a Sept. 30 letter that while there are “challenges inherent in managing increased public access while maintaining other conservation values on the Payson property, the CCLT board strongly believes that expanded access to the property, which is permitted under the easement, if managed properly, can occur while still protecting the natural and scenic features of this remarkable property.”

Asherman noted that more visitors to the property will inevitably create an impact, and that the Land Trust will need to “manage, monitor and attempt to minimize the impacts of more visitors in ways that respect the natural and scenic resources.”

CCLT has asked the town to look into methods of managing access, such as limiting the number of parking spaces, having limited hours of operation, and creating a resident permit system. The trust also asked, among other things, that dogs be prohibited from the beach year-round to protect water quality, birds and beach grasses, and that smoking and fireworks be banned.

Shane on Dec. 9 told the Ocean Access Committee that the council, town attorney, and land trust attorneys agree with Asherman’s Sept. 30 letter, “and the voters of Cumberland supported that position by their decision at the referendum vote.”

He added that the town attorney has reviewed the conservation easement “and nothing has changed regarding the town’s position.”

Nathan Bateman on Dec. 10 said his company has valid agreements with Spears Hill and the town, and the green light from Cumberland voters.

“So I don’t really know what else there is to do other than continue to move forward,” he said. “… I’ll be very happy when this transaction is completely accomplished.”

Alex Lear can be reached at 781-3661 ext. 113 or Follow him on Twitter: @learics.

Sidebar Elements

Cumberland Planning Board OKs Bateman plan

CUMBERLAND — The Planning Board on Tuesday unanimously granted preliminary and final site plan approval to Bateman Group’s 10-lot subdivision proposal at 179 Foreside Road.

The 103-acre parcel, listed for sale by the family of Marion Payson (Spears Hill LLC) earlier this year for $6.5 million, already has three homes: a mansion, a guest cottage, and another home that will remain with the family, according to developer Nathan Bateman. The Payson property’s conservation easement allows for a total of 10 homes, so seven other houses are to be built.

Tuesday was the application’s third time before the Planning Board; the first meeting was in October.

The town’s proposal for its portion of the property, which it plans to purchase from Bateman Group for $3 million, will also have to go before the Planning Board.

The seven new house lots would all be two to three acres, and “extremely special,” Bateman said, noting that “they’re in the middle of a 103-acre parcel … encumbered by a conservation easement, so the majority of it will be left in its natural state in perpetuity. There’s really nothing like it in the marketplace.”

The easement governs the size and structure of the houses, as well as colors and height limitations, Bateman said.

People who want to build on the lots would buy their acreage from the developer, who will by then have cleared the “building windows” of the lots and brought in infrastructure and roads, Bateman explained.

“That way, the homeowner that’s coming in isn’t worried about whether or not they’re adhering to the conservation easement,” he noted. “Because we’ve already done the work. … We’ll do it appropriately, we’ll do it per the book.”

The existing road into the Payson property from Foreside Road, dubbed Beach Road, will be improved, and a section will be relocated away from one of the abutting property owners, Bateman said. One condition of approval Tuesday was that a sidewalk along that road be restricted to pedestrian traffic and marked accordingly, and the Planning Board also favored a 15 mph speed limit.

Another existing road on the property, Spears Hill Road, will also be improved. Driveways will be created to lead off the two main roads.

Bateman said the design is not his firm’s, but one that “came along with the property, which was in the conservation easement. So all we’re doing is buying a piece of property and putting into place what was designed and contemplated 15 years ago when the … easement was created.”

Bateman Group’s waiver requests to the town in part concerned road widths; Beach Road will be 20 feet wide, with 2-foot-wide shoulders, although the town calls for 4-foot shoulders, Bateman said.

“The conservation easement is our Bible,” he said. “That’s what we have to adhere to.”

Alex Lear

A Maine native and Colby College graduate, Alex has been covering coastal communities since 2001, and currently handles Bath, Topsham, Cumberland, and North Yarmouth. He and his wife, Lauren, live in the Portland area, and Alex recently released his third album of original music.