CAPE ELIZABETH — The Town Council is expected to determine if a driveway permit for 6 Stonegate Road was issued incorrectly.

Robert H. Stier Jr., of 9 Rock Crest Drive, is appealing Public Works Director Robert Malley’s decision to issue the permit to Early Bird Group, developers of two lots that abut the public right-of-way of Stonegate Road.

Stier said the property is being marketed as new property in Stonegate, but is not part of the subdivision. It is a smaller house, on a smaller lot and is not subject to any covenants that apply to all of the other houses in the subdivision.

“It is fundamentally unfair,” Stier told councilors on Dec. 13. “I am asking you to reverse the grant of that permit.”

He said it is an unusual situation because while Stonegate Road is a public way, it is entirely within the Stonegate subdivision. It is a public road because it was deeded to the town on the condition on the covenants that apply to Stonegate Road and the entire subdivision.

“A permit for entrance onto a public way must be done in accordance with all local regulations,” Steir said. “This public way is within the Stonegate subdivision and the subdivision ordinance should be considered in deciding whether or not a permit should be considered.”

The area where the lots are being developed on Stonegate Road was previously a natural buffer between 370 Mitchell Road and the subdivision. Stier said residents of Stonegate are required to maintain the buffer.

“We are left with what is in effect a property declaring itself to be part of the subdivision without any requirements applied to the rest of us, and that is what is disturbing,” Stier said.

Malley said he issued the permit in accordance with town ordinances and contacted Code Enforcement Officer Bruce Smith to confirm the building permits prior to issuing the driveway permits.

Councilors Anne Swift-Kayatta, Frank Governali and Jim Walsh recused themselves from the discussion. Swift-Kayatta said her husband is a partner in the litigation department of Stier’s law firm; Governali owns property in Stonegate and is a member of the subdivision association, and Walsh lives in the Stonegate development.

Council Chairman David Sherman and Councilors Caitlin Jordan, Sara Lennon and Jessica Sullivan unanimously agreed to table the item after nearly two hours of discussion and an executive session. They are expected to receive more information from Stier and Malley’s attorneys and make a decision on Jan. 10.

The council asked Stier’s attorney to clarify two points.

Councilors wants to know if Malley had to review the subdivision ordinance to ensure the driveway permit complies with its standards of approval as well as with the Town Way Ordinance. Specifically, councilors want to know if the provision within the subdivision ordinance related to the preservation of plants and vegetative cover throughout and around the perimeter of the subdivision applies to the strip of land in question. If it does apply, they want to know if that would prevent Malley from issuing the driveway entrance permit.

They also want to know if there were any conditions or restrictions imposed by the developer of the Stonegate subdivision or by the Planning Board in its written approval that would prohibit or restrict Malley from issuing the driveway entrance permit.

Councilors will receive the information and review it before their next meeting on Monday, Jan. 10.

Amy Anderson can be reached at 781-3661 ext. 110 or aanderson@theforecaster.net

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A resident of the Stonegate subdivision in Cape Elizabeth is appealing a decision allowing the driveway of this home to be built on Stonegate Road, even though the house, on Stonegate Road at the intersection with Mitchell Road, is not part of the Stonegate subdivision.