06/10/09
Town Council approves overhaul of Business A District standards, maps
The Town Council on June 8, 2009 approved an overhaul of the town's Business A zoning district, one that is intended to give a small, neighborhood feel to the two Business A districts currently in town.
The rewrite applies to the business areas along Shore Road at the northern border of Cape Elizabeth with South Portland, and to the area along Route 77 roughly between Broad Cove Road and the Kettle Cove Take-out and Dairy Bar.
"I would just say as a preamble that what we have here before us reflects hundreds of hours of people seeking to make this palatable and acceptable, and possibly even desirable, for all of the members on all sides of the issues," said Town Councilor Sara Lennon, chairman of the council's ordinance subcommittee.
Councilors voted separately on three parts of the zoning rewrite. All six councilors present at the June 8 meeting voted to approve a new zoning map for the southern business district along Route 77, but the new map for the northern district on Shore Road, as well as a new set of text amendments, passed by a vote of 4-2.
The inclusion of a new property in the business district along Shore Road is what prompted councilors David Backer and Jim Rowe to vote against the map for the northern district.
"I have yet to hear what I have found to be a compelling reason for rezoning 553 Shore Road," said Backer. The owner of the building bought it as a residence under current zoning, and had no reasonable expectation to change it to business, Backer said. On the other hand, surrounding neighbors have a reasonable expectation that their properties and the properties of their neighbors would remain residential. "The litmus test for me is, what would I want the rules to be if I were a neighbor?" Backer said.
Rowe, chairman of the council, said he believed a modest business could be run at 553 Shore Road while retaining the residential designation, and that rezoning the home could be a step in the demise of one of Cape Elizabeth's most historic residential neighborhoods.
Other councilors, however, said they believed the business zone as rewritten addressed the neighbors' concerns. "I do not see this as a large expansion of permitted uses for this property," said Councilor David Sherman.
Following a public hearing last month and two Town Council workshops, a standard was added to the draft ordinance limiting businesses in the Shore Road district to personal services, village retail, professional office or other low-impact uses if the property shares a 225-border with residential lots.
Restricting uses based on boundary length, rather than lot size, will prevent combining lots to circumvent restrictions, Sherman said. "I don't see this as a step in supposedly this domino effect
in this particular area of town," Sherman said. "This in my judgment makes the most sense from a planning standpoint," he said.
The amendments also include standards for building design that are intended to be consistent with small-scale neighborhood businesses,
Penny Jordan, another councilor who voted for the amendments, said she would not vote for the map change if she thought it would impact the integrity and viability of the north Shore Road neighborhood. "I feel we've really worked to reach a compromise that would embrace both businesses and neighborhood," she said.
Backer and Rowe also cast the dissenting votes on the text amendments, for the largely the same reasons they opposed the map change to the Shore Road business district. "Primarily because of neighbors who will have to live with extended (business) hours at the southern end of Cape Elizabeth," Backer said. "These residents, like the residents of 553 Shore Road, had no reasonable expectation of change," he said.
Another change to the draft, made in response to public hearing comments last month, will allow businesses within 100 feet of a residential area to stay open until 10 p.m. The previous draft set closing time of 9 p.m. for those businesses. A third change to the draft dictates that all doors must be locked and all customers must have left the building by closing time.
"I have heard from neighbors experience that a 10-o'clock closing time does not clear out the noise and the intrusion in the neighborhood, it lingers well passed that," Backer said. "I think it is an unreasonable burden to expect people, in a town like Cape Elizabeth, to bear. This is a rural community. People shouldn't be lying in bed at 10:30 listening to people in a parking lot next door," he said.
Sherman, one of the four councilors who voted for the amendments, said such problems would be a matter of enforcement. He said he believed the new rules will provide predictability for both business areas, and provide standards that were absent before. Property owners wishing to alter use of their property will need to come before the Planning Board, Sherman said.
In the case of Rudy's of the Cape, located at 517 Ocean House Road, the town's code-enforcement officer has yet to determine whether expanding hours to 10 p.m. will constitute an expansion of use.
The draft amendments approved by the council will also allow businesses more than 100 feet from residential properties the option of staying open until 11 p.m. up to three times a year, with advance notice and permission from the code-enforcement officer.
The business district rewrite is the culmination of study and work by town officials and boards, the subject of several public hearings and one public forum. It was a recommendation of the 2007 comprehensive plan, adopted by the Town Council in October of that year.
Lennon summarized the new Business A District as a mixed use, desirable area for both residents and businesses. "I think it provides myriad protections for the neighbors, I think it gives small businesses a fighting chance to survive, and I think it will enhance the larger town community," she said.
The text amendments also adds properties in the Business A District, served by public sewer, to the list of areas where critical wetland buffers may be reduced from 250 down to 100 feet.
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