2018-09-14 / Community

Council gets earful on ‘paper street’ buyout offer

By Duke Harrington
Staff Writer

CAPE ELIZABETH – With a settlement deal in hand to end the decades-old argument over public use of a scenic paper street, the Cape Elizabeth Town Council has no lack of public opinion to consider.

A hearing on the topic drew nearly 70 people to town hall Monday, Sept. 10, with commentary lasting nearly two hours.

In all that time, not much was said that has not been expressed at other recent meetings on the topic. Many town residents urged the council to reject the offer and maintain a public interest in the unbuilt road. Others said to take the deal, but to hold out for more money. Others, meanwhile, said any money should go toward continued maintenance of Fort Williams Park, rather than the purchase of new properties.

The town council will conduct a final vote on the settlement offer Wednesday, Sept. 19, a single-issue session council Chairman Jessica Sullivan predicted will “be a very long meeting.” Before that meeting, however, the council will go behind closed doors on Monday, Sept. 17, for a final executive session with town attorney Durward Parkinson. Among the key issues councilors will try to wrap their arms around is the real market value of the land in question.

The council chose not to set the vote for Sept. 17, even though it has a regular meeting that day, because one agenda item at that meeting –consideration of a payto park proposal at Fort Williams Park – promises a marathon meeting in it own right.

According to Parkinson, Sept. 19 is the last day the council can vote on the settlement without going back to the court and asking for an extension.

The mediated offer on the table that would pay the $500,000 to abandon all future rights to Surf Side Avenue, a so-called paper street with prime views of the town’s Atlantic coastline. In return, a quintet of property owners who consider the road to be their own own property – in effect their backyards – would drop a current lawsuit filed over town plans to turn the road into part of its Greenbelt network of walking trails.

The buyout from the litigants – Imad and Hulda Khalidi, David and Kara Leopold, Andrew Sommer and Susan Ross, Stewart and Julie Wooden, and an entity known as Pilot Point LLC – would be put into the town’s land acquisition fund, to be used to purchase and preserve other lands for public use.

While a council vote to take the deal might end the current court battle, it would likely not end all legal headaches for the town.

Trundy Road resident Paul Moson said more than 1,400 people in town have signed a petition urging the council to retain rights to Surf Side Avenue. Those residents, particularly the ones who live in the 115-home Shore Acres subdivision, are united in their cause, he said.

“If we have to sue, we will sue,” Moson said.

“As a taxpayer, some things are worth fighting for,” said former town councilor Mary Ann Lynch, of Old Colony Lane.

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 accessed by Surf Side Avenue, which winds along the shoreline.

However, the subdivision was not actually 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. Some current members of the Shore Acres homeowners association say spats over use of Surf Side Avenue by anyone not living on Pilot Point Road have simmered on and off since the 1960s.

That low-voltage animosity amped up in 2013, when 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 Surf Side to Pilot Point Road.

Residents of Pilot Point Road have said the public has access to the shore along a gravel portion of Surf Side Avenue known as the “Algonquin section,” which runs from the end of Pilot Point Road to Algonquin Road. But the 800-foot-long section of Surf Side Avenue behind their homes has eroded over the past century, they say, with much of where it was to have gone now a sheer cliff face. What remains, they maintain, is indistinguishable from their backyards and, until cutting by trail activists, had grown to become virtually inaccessible to pedestrian traffic.

Despite the abutters’ assertion that most of 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 town 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 Maine 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 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 public 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.

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