2018-07-13 / Front Page

Cape council declines to intervene in road lawsuit

By Duke Harrington
Staff Writer

CAPE ELIZABETH — The Cape Elizabeth Town Council took no action on a petition presented to it Monday, July 9, demanding that it allow reinstallation of a gate to block traffic from entering a private road, in part because the road is already the subject of a lawsuit.

However, some members of the council said they were caught unaware, having no idea the town was in court over the issue. Despite urging from Chairman Jessica Sullivan, who said councilors should not comment on pending litigation, several publicly prodded the town attorney for information.

The issue stems from a May 15 decision of the planning board. At that session, the board approved an 80-foot-long gravel extension to Astor Lane as a private road, to serve a new home to be built on a lot owned by Spurwink Avenue residents Margaret Birlem and Noelle DeLuca.

Birlem and DeLuca purchased the 0.55-acre lot on Aster Lane in November 2017 for $129,000.

To facilitate the new construction, and to provide access to the new home, Birlem and DeLuca wanted to take down a chain gate that has separated Astor Lane, a public way in the Cottage Brook subdivision, from Spring Street, a private road in the South Portland Estates subdivision. The planning board ruled unanimously in favor of the application, noting that the gate itself was outside its scope of authority.

Although there was testimony at an April planning board meeting claiming the gate was installed at the behest of police back in 2004, Town Planner Maureen O’Meara said at the May 15 session that chiefs of both the police and fire departments have denied any knowledge of the gate’s origin.

“I don’t even think we can say that there was a police power motivation for the installation of the gate. It is an orphan gate at this point,” she said.

Fire Chief Peter Gleeson, meanwhile, said he’d prefer for the gate to disappear.

“Gates, as a rule, I’m not in favor of. (They) limit our access and slow us down,” he said. “I’d prefer there be no impediments to our response.”

In its approval for Birlem and DeLuca, the planning board imposed a condition – that signs be erected where Aster Lane meets South Street, and were Stephenson Street (also a private road) meets Hamlin Street, declaring, “Access for residents only.”

South and Stephenson streets meet at a 90-degree corner. Combined with Hamlin Street and Astor Lane, the four roads – two public and two private – create a loop off of Spurwink Avenue, while the far end of Aster Lane connects to Mitchell Road via Columbus and Killdeer roads.

Less than a month after the planning board ruling, on June 13, Chris and Julie Munz of 5 South St. filed a lawsuit in Cumberland County Superior Court. The appeal claims the planning board erred because a town ordinance requires that a private access road serve only one developed lot. Allowing access to South Street and the extension of Aster Lane should have required approval of an amendment to the original subdivision plans, they said. Birlem and DeLuca reportedly do not have enough road frontage on Aster Lane to construct their new building.

Hwever, Birlem and DeLuca claim they have deeded

rights to access South Street through their purchase of the lot, and that the previous owners, Philip and Darlene Nedwell, had created an approved private extension off South Street in 2004.

At the July 9 town council meeting, South Street resident Rebecca Little presented a petition asking the town to reinstall the gate, which has already been removed – twice.

“We have the legal right and the responsibility to control and prevent public access on our private ways,” she said.

Little said Birlem and DeLuca removed the gate “immediately after” the May 15 planning board decision. She and her neighbors reinstalled it on June 24. The following day the gate was removed again, “in the permissive presence of town police,” Little said.

“With the gate down, we have already been subjected to a substantial increase in public traffic, including trucks,” Little said.

Julie Munz said that increase in traffic puts her son at risk.

“He is 7 years old and has severe epilepsy and, as a result of it being uncontrolled, he has a lack of awareness at all times,” she said. “Each seizure creates irreversible damage to his cognitive abilities. As you can imagine, this means everything from his memory to his basic understanding of primary safety is impaired.

“He is fearless because he doesn’t have an understanding of what can cause bodily harm or damage,” Munz added. “He doesn’t understand the dangers surrounding cars or traffic, which is why we bought our house on a private dead end.

“My son needs that gate and that will likely not change in the foreseeable future,” Munz said. “That gate never should have come down.”

Stephenson Street resident Jessica Mathis said the past month has brought a “severe increase,” in traffic, despite a prediction submitted by Birlem that claimed any change would be “minimal.” That report was prepared by consultant Bill Bray of Portland-based Traffic Solutions.

“Since the gate has come down, our daughter is no longer able to ride her bike in our neighborhood,” Mathis said. “There are no sidewalks, there are no shoulders on our private road, and it is dangerous, watching cement trucks or other vehicles who are not familiar with our families, and frankly, vehicles who have just total disregard for the speed limits in our area. It’s very dangerous.”

Jim Fisher, president of Scarboroughbased engineering and surveying firm Northeast Civil Solutions, said the lawsuit is not the issue, and that the council could and should allow reinstallation of the gate to limit vehicular traffic, at least until the legal case is resolved.

“We are actively in litigation on the subjects that have been presented here and on the advice of the town attorney, council will not be commenting,” Sullivan said, ending the topic.

Even so, several councilors insisted on asking “logistical questions.”

“This matter is already involved with our attorneys and I think we should leave it there,” Sullivan said.

“Well, I’ve got maybe at least a dozen questions, to know what the heck is going on,” said Councilor Caitlin Jordan. “This is the first that I’m hearing today that we are involved in litigation on this, that we can’t talk about it. I’d like to know where we stand? What’s our timeline? What’s happening? I don’t think we’ve been kept as up to date as I would have liked to have been. I feel very in the dark right now.”

Most of the questions logged by Jordan and her peers, Sara Lennon, Jamie Garvin, and Christopher Straw, involved getting a lay of the land for how the roads are connected. Town Manager Matthew Sturgis said it was unclear whether the gate had been, legally, on South Street or Aster Lane – a lot depends on where an actual demarcation of survey lines in placed. The two roads appear to run together as one continuous street, with the only visual clue – apart from the gate, when it was present – being a narrowing of the road as Aster Lane turns into South Street, he said.

Town Attorney John Wall, of Portland firm Monaghan Leahy, said there may be a stay of the superior court case as litigants work on a solution. Depending on how long that stay might last, the case could be resolved by November, he said.

“It’s important to let the process work itself out,” he said. “When you have disputes like this and parties can’t agree, it’s best for the courts to work these things through.”

“Is the gate part of the planning board’s decision?” Councilor Christopher Straw asked.

“That’s an issue the superior court is going to have to rule on,” Wall said. “Those are arguments that could go both ways.”

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