2018-08-17 / Front Page

‘Paper street’ buyout offered

By Duke Harrington
Staff Writer

CAPE ELIZABETH — Cape Elizabeth has an offer on the table that would pay it $500,000 to abandon all future rights to Surf Side Avenue, a so-called paper street with prime views of the town’s coastline.

Surf Side Avenue was laid out in 1911 as part of the Shore Acres subdivision, which included house lots accessed by what is now Pilot Point Road and abutting lots along the shoreline, to be accessed by Surf Side Avenue. The subdivision was not built until the 1950s, at which time the lots between the two streets were merged. With combined lots having frontage on Pilot Point Road, there was never any need to build Surf Side Avenue.

However, because it still existed on paper, tensions simmered for years among subdivision residents, with some claiming a right to walk along the unbuilt road, while many abutters claimed the area as their own private property.

Eight residents of Pilot Point Road sued the town in January over the balance of the road, extending roughly 1,500 feet from Atlantic Place to the Algonquin section.

At a mediation session July 19, the plaintiffs reached a settlement agreement with a council subcommittee comprised of Councilors Sara Lennon, Jamie Garvin and Chairman Jessica Sullivan. On July 30 the full council met to consider that deal, under which the plaintiffs would drop their suit and pay the town $500,000 to walk away from Surf Side Avenue forever.

In response, other residents of Shore Acres submitted a petition containing more than 1,400 signatures – twice as many, they claim, as ever submitted to town hall for any other purpose.

On Monday, Aug. 13 the town council took no action. Instead, it agreed to conduct a public hearing on the settlement offer at its Sept. 10 meeting. It will then call a special single-time meeting to vote on the deal for a date before Oct. 10, Sullivan said.

“I myself am personally opposed to this settlement,” Sullivan said at Monday’s meeting, “but as chairman I have worked in good faith to bring this forward for council consideration.”

During Monday’s meeting, the council spent several minutes quizzing Parkinson on the finer points of Maine road law, assuring themselves and residents that nothing they have done to date has “vacated,” or abandoned, the town’s interest in Surf Side Avenue.

Ten residents spoke during the session. One deemed the settlement offer a good one, except that the proffered price was too low. The rest urged the council to assert public interest in the paper street, predicting a flood of interest in the Sept. 10 hearing.

Animosity amped up in 2013, when the Cape Elizabeth Conservation Commission circulated a proposal to extend the town’s Greenbelt Trail system. One section of the new trail was slated to run down Surf Side Avenue, another along Atlantic Place, which linked it to Pilot Point Road.

Residents of Pilot Point Road have said the public has access to the shore along a gravel section of Surf Side Avenue known as the “Algonquin section,” which runs from the end of Pilot Point Road to Algonquin Road. But the section of Surf Side Avenue behind their homes has eroded over the past century, with much of where it was to have gone now a sheer cliff face. What remains, they say, is indistinguishable from their backyards and, until cutting by trail activists, had grown to become virtually inaccessible to pedestrian traffic.

Despite the assertion that most of the land where Surf Side Avenue would have gone in 1911 has since fallen into the ocean, a May 2017 report prepared by South Portland engineering firm Sebago Technics advised councilors that a walking path along the paper street is “readily achievable,” costing between $7,750 and $10,000 to build.

In January 2014, the council voted 5-2 to accept the Greenbelt Trail master plan, including the Surf Side Avenue and Atlantic Place sections. Then, in October 2016, the council voted 4-3 to extend the town’s “incipient rights” to Surf Side Avenue.

In 1997, the Legislature passed a law erasing from the record, or “vacating,” all roads recorded in the registry of deeds before September 1987 but not actually built by September 1997. However, that law let towns retain “incipient dedication,” or future rights, to any paper streets it specifically exempted from abandonment.

At that time the council voted to retain rights to 58 paper streets. A 20-year timetable to renew those rights came due in 2017. With that in mind, the 2016 council vote was to retain future rights to 32 of the paper streets, including Surf Side Avenue, to abandon rights for seven, and to accept as public rights-of-way 19, mostly to provide pedestrian and bicycle access to open spaces.

According to town attorney Durward Parkinson, an “incipient dedication” does not convey any public access to a paper street as a right-of-way. It merely preserves a municipality’s right to accept as a pubic way at some future point a road laid out in plans filed at the registry of deeds.

No one has a right to traverse Surf Side Avenue except those residents of Shore Acres with deeded access rights, he said.

The renewed incipient rights to Surf Side Avenue will expire in 2037. As the current final “sunset” date in state law, the town will have to decide by then whether to accept the road or abandon its interest.

Return to top