A proposal to reduce the buffer around a critical wetland in the Business A District failed to gain the four votes needed for approval by the Town Council Monday night.

Councilors were deadlocked 3-3 over a proposal that would have reduced the development buffer around a critical wetland in the Business A District, in the vicinity of the Two Lights General Store on Ocean House Road, from 250 feet to 100 feet

Store owner Mary Page had proposed the zoning ordinance amendment, which would have allowed development outside 100 feet of a critical wetland as long as the business is on public water and sewer.

Page told councilors that she proposed the amendment to allow for cleanup of the property, a practice one of the councilors voting for the change said she favored.

"I think we ought to be supportive of that kind of effort," said Councilor Mary Ann Lynch.

Lynch also favored the amendment last month when the proposal first came for a council vote, but moved to table until this month when all eligible council members could vote. Councilor Paul McKenney was away on National Guard duty, and Councilor David Backer has recused himself from all discussion.

McKenney, Lynch and Councilor Michael Mowles voted in favor of reducing the buffer in the Business A Zone Monday, but the proposal fell short of the four council votes needed for an ordinance change.

Voting against the amendment were councilors Carol Fritz and Jack Roberts, and Council Chairman Anne Swift-Kayatta.

Swift-Kayatta, who last month said she was "on the fence" on the matter, cited several reasons for her vote against the proposal, including lack of public support for the change and concern about possible environmental consequences. But, she said, her vote was based mostly on an earlier council decision to hold off on zoning ordinance changes until the comprehensive planning committee completes its re-draft of the Town's comprehensive plan.

"I am mostly persuaded by our action a few months ago," Swift-Kayatta said, referring to the council's approval last February of the comprehensive planning process. The process approved by the council included the assumption that the Town would refrain, as much as practical, from amendments to zoning and other land ordinances and plans until the comprehensive plan is complete.

Councilor Carol Fritz also cited the council's intent to refrain from ordinance changes, but that reasoning drew sharp criticism from Councilor Michael Mowles. "Should we disband the ordinance committee?" Mowles said, referring to the three-member council subcommittee that reviews and recommends proposed ordinance changes to the full council. "That part of your argument really doesn't hold any water," Mowles said. Roberts, however, said he did not see the proposed change as time-sensitive, and could wait until the comprehensive planning committee completes its study and gathering of citizen input, or more is learned about environmental impact.

Lack of information about possible environmental impact was Roberts' primary reason for opposing the buffer reduction. "We have no definition of where the wetlands drain, of how large they are, what they're encroaching on," he said. "Until we get that information, I don't want to change what we have." Fritz cited years of planning and scientific study that went into the drafting of the wetlands buffers. "There are many reasons why we should protect the wetlands, particularly near Great Pond," said Fritz.

Both proponents and opponents said they thought it unfair to have regulations in a business district different from those in residential districts. And, considering that businesses must be on public sewer to qualify for the buffer reduction, proponents believed the amendment would actually be better for the environment. McKenney said waste water coming from the businesses drain into the wetland. "That's more harmful to the environment than if they were on sewer," he said. Mowles said there are days when you can smell the septic leaking into the wetland, and that Page's efforts to clean up her property actually made the buffer reduction a sound environtmental move.

Both Mowles and Lynch said amount of land impacted by the amended was small, and that they did not believe Cape Elizabeth needed a buffer standard more restrictive than the state's 100 feet.

The current zoning ordinance establishes a 250-foot buffer around critical wetlands. That buffer can be reduced to 100 feet in four instances:

• The area is in a coastal sand dune
• The critical wetland is smaller than 2 acres
• The area is densely developed
• The site is separated topographically from the wetland, for example by a ridge or berm.

The amendment would have added properties in the Business A District, served by public water and public sewer, to the list of properties that qualify for a buffer reduction.

Previous story:

• Wetland buffer amendment tabled to July Town Council meeting (06/14/05)