Scarborough residents seek Avenue 2 reconsideration

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SCARBOROUGH — Several residents at a public hearing Wednesday asked the Town Council to reconsider an agreement that would give up rights to a beach access path in a compromise with abutting property owners.

The council also unanimously approved a second, six-month moratorium on retail marijuana operations. 

The town has been crafting an agreement for more than two years for Avenue 2 at Pine Point, a paper street that exists only in town plans and is not developed or used as a road. 

The council initially approved an agreement with property owners Feb. 8. The meeting Wednesday was the first of two public hearings on the issue. The next is slated for March 7.

The town and owners of property abutting the path, which has been used for beach access to Pine Point Beach since the 19th century, reached an agreement that preserves public access in exchange for the town relinquishing rights to the land.

Don Hamill, a resident of Bay Street, read a letter from his neighbors, who were concerned about the timing of the process, when many property owners are not in the state. 

Philip Reed said the town did not take an aggressive enough stance to defend the town’s right to the path, while another resident asked why the council would relinquish its rights when the town has approved millions of dollars in bonds to protect conservation land. 

Deirdre Paul, who said she has used the path for 50 years, asked the council what the town’s principles are, especially with so much at stake. “I would like rock-solid assurance the path will always be there,” she said. 

After the council’s 4-2 vote earlier this month, Councilor Chris Caiazzo called the agreement “a win-win for everybody.”

“We increase income from the tax base and we preserve access,” Caiazzo said. 

The matter first came to light after property owner Charles Gendron approached the town about discontinuing Avenue 2 because he needed additional land as dictated by setback ordinances to build a larger replacement home on his property, according to Gendron’s attorney, John Bannon. 

Under the new agreement, Gendron can build up to 25 feet from the centerline of the path. 

According to Council Chairman William Donovan, the path is owned on one side by Gendron, and on the other by Gables on the Sea Condominium Association.

Determining the ownership of the land caused the two-year delay in reaching an agreement. Some councilors and residents believe the town owns the land. 

Under the agreement, the town has a right-of-way easement that preserves public access. The association sought to limit certain types of activity, such as camping and fires, and hours of use, which bothered other town residents committed to preserving public use. 

The limits were nixed from the agreement because town ordinances already regulate public parks.

Councilors Katy Foley and Peter Hayes voted against the agreement. Foley said she believed the town owns the land and there were other, creative ways to give Gendron the space he needs.

The town’s attorney, Benjamin McCall, said at an earlier meeting if the case went to court, it is not certain the town would prevail, meaning the pathway could be designated as private property, and public access could be disallowed. McCall said the goal to protect public access was achieved in the agreement. 

It is not clear whether the town ever formally accepted Avenue 2, so who has ownership of the property was central to working out the agreement, McCall said. He said access to the beach will exist in perpetuity. 

Dunes near the pathway will also be protected under the agreement, which includes a conservation piece. 

The property has no value to the subdivision owner, and the courts have determined that abutters of paper streets own the property to the middle of the pathway, Donovan said.  The state Legislature has created a process for towns to either retain or extinguish their rights to the land. 

Marijuana moratorium

The council passed another moratorium on marijuana social clubs and retail shops in order to give the Legislature additional time to finalize state law.

Town Manager Tom Hall said the moratorium, first passed last September, was intended to provide time to know what protections, if any, the state will first provide on the issue before crafting a local ordinance. Towns are able to limit or ban retail activity. 

At the state level, a select committee has been formed and is working with the governor’s office, but there is no clear timeline on when the state laws will be finalized, said Hall.

The town’s ordinance committee has not begun to craft an ordinance to regulate retail marijuana operations because of the limbo status.

Councilor Katy Foley asked whether the town should be more proactive in that regard, so something is in place at the end of the moratorium just in case the state still has not reached a decision.

Once this second moratorium expires, in August, a third moratorium will not be enacted. By state law, said Hall, only a 12-month limit is allowed.

Juliette Laaka can be reached at 781-3661 ext. 106 or at jlaaka@theforecaster.net

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