2017-10-27 / Front Page

Council denies zone change

By Michael Kelley
Staff Writer

CAPE ELIZABETH – A business looking to move to 27 Fowler Road was denied a zoning change to do so after town officials feared it would set a dangerous precedent and impact the neighborhood surrounding it.

Brad Pearson, owner of Anything Goes Property Management, sought to move his company from South Portland to Cape Elizabeth, but needs the Fowler Road property rezoned from Residence A (RA) to Business B (BB), a change councilors couldn’t support at an Oct. 11 meeting even though the BB zone abuts the Fowler Farm property. The RA zone does allow for some commercial activity, but not landscape contractor, the use Anything Goes falls under.

“I don’t believe the road or neighborhood should have a zoning change. I think residential is the way it should stay,” councilor Jessica Sullivan said before the council unanimously rejected the zoning change request.

The council’s decision follows a Sept. 19 planning board recommendation to not make the zoning change.

“It was a really tough decision. There are pros and cons, as there are with any decision,” planning board Chairman Carol Ann Jordan told councilors Oct. 11.

“The planning board recommended not to make the change. The concerns were varied. There were concerns about setting a precedent for all abutting property owners and the BB district. There were concerns about additional traffic that could be created by this,” she added. “The residents of Fowler Road spoke about the existing commercial traffic and adding to that. There were also concerns about violations that were seen during our (Aug. 30) site walk.”

According to a Sept. 13 email from Code Enforcement Officer Benjamin McDougal to Town Planner Maureen O’Meara there is a unresolved notice of violation on the property from a building expansion done six to eight years ago due to a certificate of occupancy never have been granted by the town. McDougal also notes there has been increased business activity in recent years. The property is part of a zone that is for residential use only.

“While legal occupants of the property can drive their business vehicle home, it crosses the line to business activity when employees of the businesses are coming and going and when materials and equipment are being stored on the property,” he wrote to O’Meara. “I am not positive this is occurring, but it is a concern.”

Pearson attributed the violation to a pile of dirt that was blowing onto neighboring properties, something that could easily be addressed and could be a “contingency of the rezone.”

“It concerns me these violations have gone unresolved for such a long period of time and I would suggest if someone is asking the planning board or the town council to make a change that they need to have (everything) in order and that doesn’t appear to be the case,” councilor Kathy Ray said.

While the violations were a concern, Nel Hanig, a resident of the nearby Great Pond Condo Association, said her issue with the request was the road is already full of “big trucks” traveling to and from the abutting gravel lot.

“This would add more trucks,” she said. “It’s less a traffic issue than a safety issue with trucks going down the road. A lot of kids live on the road.”

She is also worried about what sort of message it would send if the council was to grant the zoning change amidst the unresolved violations.

“It would set a low bar for other zoning requests for business on Fowler Road. It is very much a residential neighborhood and I for one, and I know others, would want to keep it that way,” she said.

To Hanig’s concern, Pearson said the only traffic generated by the business would be pickup trucks, not large scale trucks that someone needs a Class A or B license to operate.

Pearson told councilors he wants “to try to make this work, so I can be back in the town where I was born and raised.” Anything Goes, which offers property maintenance, construction, handyman work, painting, snow and trash removal and more, was started in 1989 by Pearson’s parents Carl and Angela, who retired in 2013 and passed on the business to Pearson.

Councilor Sara Lennon said her decision to not make the zoning change had nothing to do with the quality of the work performed by Anything Goes.

“I wish there was a way we could accommodate your desire to come back to Cape, that there was somewhere else that you would be in compliance or some other property you could use because my vote, in no way, is to penalize what you guys are doing,” she said.

Her vote was cast, she said, due to her discomfort with a rezone on the property.

“We have zoning for a reason and people who buy property in a residential zone should have reasonable reassurance it will remain residential and by that, relatively peaceful and quiet,” she said. “I understand the gravel pit complicates the equation. That’s a non-conforming use, but (it) was there before the neighborhood was, so there is no remedy for that.”

At the Oct. 11 meeting, the council also reviewed a proposal to ban polystyrene foam use in food establishments in town and impose a 5 cent fee for single use carry out plastic and paper bags, two amendments recommended by the recycling committee.

Kara Lavender Law, chairman of the recycling committee, said committee members have visited in many of the businesses that could be impacted by the ordinance changes.

“There were definitely some concerns from these retail non-food businesses. That is in contrast to the food retailers who were by and large very supportive of both the proposed amendments,” she said.

A public hearing on the subject will be held Monday, Nov. 6.

The council also adopted clarifying language in the Miscellaneous Offenses ordinance to bar animals from wandering onto private property. The ordinance had called out horses, cow, ox, swine, goats and other grazing animals, but after complaints about wayward chickens, the ordinance was broadened to include any animal, except dogs, which are regulated in another ordinance.

The council also looked into changing the off-leash area in Fort Williams Park.

Mark Russell, chairman of the Fort Williams Park Committee, said the group has been looking into the issue of dogs off leash in Fort Williams for a year and has unanimously supported the idea of restricting dogs from the multi-purpose field from April 15 to June 15 and Aug. 15 to Oct. 15.

“What we decided was to eliminate dogs from the multipurpose playing field at the fort during the seasons in which children are playing on the field, or are scheduled to play on the field,” Russell said.

Right now, there is a plastic fence to keep dogs away from the field and the committee had talked about fencing in the field, which could cost $25,000.

While the dogs may be banned from the fields, the committee is also recommending expanding the area where dogs can run free.

“Because we are sensitive to their needs, we wanted to give (dog walkers) additional space in the park for dogs to run free, so we proposed to change the boundaries of the off-leash area and include a portion of the green, which is down by the lighthouse. Currently dogs are prohibited from running freely on the green,” Russell said.

There is an enforcement issue in terms of regulating dogs, Russell said, because the town shares an animal control officer with South Portland.

Councilor Kathy Ray has a different take on dogs in Fort Williams.

“I am concerned about the proposal. I am having a hard time understanding it, so I am wondering how dog owners are going to understand it,” she said.

Ray said she feels dogs should not be allowed to be off leash and should be “controlled with leashes when they are in public areas.”

“I see no reason to have dogs off leash in Fort Williams period,” she said.

Jessica Sullivan frequently visits the park with her two dogs in the offseason and feels dogs should be on-leash at all times because loose dogs can be a hygiene or safety issue.

“I would keep them off the playing fields. Even walking the dogs, they shouldn’t be on the playing fields,” Sullivan said.

Because the town is looking into long-range planning for Fort Williams, including potentially hiring a park manager, council Chairman Jaime Garvin said he would take a “cautious view on changes like this.”

The council passed the topic on to the ordinance committee for its review before the council potentially takes further action.

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