s-ceordinancecommittee-020609 Committee's approach evokes spot zoning

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CAPE ELIZABETH — The Town Council Ordinance Committee is using zoning loopholes to essentially spot zone a home at 553 Shore Road, which is under discussion for addition to the Business-A district.
Spot zoning, also known as contract zoning, is a tool some towns use to approve requirements for a specific property owner seeking zoning changes. Spot zoning is not allowed in Cape Elizabeth.
The BA district, which exists along portions of Shore Road and Route 77, is facing overhaul by the Ordinance Committee at the recommendation of the Planning Board. Committee members at a Jan. 30 meeting admitted that, in part, they are using changes associated with the overhaul as a way to spot zone 553 Shore Road.
Lee Wilson, who owns the building, hopes to convert the 100-year-old home into a mixed-use building with small retail on the first floor, office space on the second floor and a studio apartment on the third. Wilson has asked that it be rezoned from a residential zone into the business district it abuts.
In order to limit unwanted uses of 553 Shore Road – uses the committee may deem inappropriate for a property that very closely neighbors several homes – committee members suggested rules specific to lots of less than 10,000 square feet.
Only three properties within the BA district would be affected by the 10,000-square-foot limit: the town fire station on Shore Road, the Kettle Cove Dairy at the southern end of the Route 77 BA zone and 553 Shore Road. Altogether, there are 19 properties in the district.
Uses discussed as facing possible limitations based on lot size include restaurants, repair garages, gas stations, personal services, cottage industry manufacturing, and veterinary and medical offices. The committee could not reach agreement on the list, and could revisit it at a future date.
While the committee chairwoman, Councilor Sara Lennon, said that discussions specific to 553 Shore Road could serve metaphorically in future development discussions in the town, Councilor David Backer called for a little more transparency on the issue.
“These (proposed) changes would affect Kettle Cove Dairy, but not by design. The focus is still 553 (Shore Road),” Backer said. “I think we’ve got to acknowledge up front that the list (of uses) we’re creating is for 553.”
It was also suggested that if 553 Shore Road is denied a zoning change, the committee or council could revisit changes made in the overhaul.
Another approach suggested at the Jan. 31 meeting was to impose a two-tiered set of requirements for uses deemed unfriendly to neighborhoods – those within 100 feet of a residential lot would have one set of requirements, while those farther away would have less stringent rules.
A uniform set of 100-feet rules would “eviscerate” the Shore Road zone, Town Planner Maureen O’Meara said, because no property there would meet the requirement. The two-tiered approach was OK’d for determining restaurant hours, but is still under discussion for other uses. Restaurant hour requirements have also been OK’d for lots of less than 10,000 square feet.
Within 100 feet of a residence, a restaurant would have to close by 9 p.m. Farther away, a restaurant could be open until 10 p.m. On a lot below the 10,000-square-foot size limit, a restaurant would have to be closed by 5 p.m.
In order to prevent the operation of bars in the zone, the committee also decided that a restaurant can earn no more than 25 percent of its total sales from alcohol. That figure fits what currently happens at The Good Table restaurant in the Route 77 BA zone. The Good Table has reported 15 to 20 percent of its sales come from alcohol, according to O’Meara.
Though the Ordinance Committee had hoped to reach a final recommendation, it will meet at least once more to finalize possible 10,000-square-foot rules and a list of limited uses. A meeting has not yet been scheduled. O’Meara has also suggested that the committee alter the district’s purpose statement to fit any changes.
A recommendation from the committee must still go before the Town Council for public hearing and action.

Sarah Trent can be reached at 781-3661 ext. 108 or strent@theforecaster.net.