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Ahead of referendum, council adopts ordinance imposing limits on sale of town rights to shoreline access

Rather than set a referendum on a proposal to limit the town's ability to relinquish rights in shoreland property, the Town Council on Feb. 11, 2019 adopted the citizen-initiated ordinance outright - with an eye toward revising it in the future.

Councilors voted 5-1 to adopt the ordinance, which adds a chapter to the existing conservation ordinance to require a 70-percent "supermajority" of the Town Council to approve the sale or other disposition of rights in property that provides access to the shore.

Because the ordinance was proposed by citizen petition, the town charter requires the council to either set it to referendum or to adopt it outright. Revisions by the town's attorney are allowed to assure legality, but no other changes are allowed before adoption by the council or by referendum.

After adoption, however, the council is free to change it as any other ordinance, said the town's attorney Mike Hill. "As an ordinance you would have the right to tweak that at any time really, after passage, next year, the year after, 15 years down the road ... ," Hill told councilors, in answer to a question from Councilor Caitlin Jordan.

The council's ability to make subsequent changes prompted at least one councilors to agree with petition supporters who asked for council adoption, rather than referendum. Chris Straw, one of the five who voted for adoption, said he was doing so because it was the most expedient way to alter it. "Actually I find that the ordinance is too permissive," he said.

The ordinance prohibits the sale or other disposition of property that provides shoreland access - if retention of that property has also been recommended by a town committee - without the approval of at least 70 percent of the Town Council, or by a townwide referendum.

Straw said he would rather see unanimous or near-unanimous council approval for such dispositions, and that he would remove the committee stipulation and would like better definitions of shoreland and of direct access. "When I think about how you draft an ordinance, you want to look at it in a vacuum, as opposed to the conflict and strife that is occurring at this particular instance," Straw said, referring to current litigation over rights to paper streets in the Shore Acres subdivision.

The petition calling for the ordinance was submitted in January by the Save Our Shoreline Access Coalition, a group "organized to foster protection of Cape Elizabeth's public access rights to shoreland resources," according to Attorney Richard Bryant.

Bryant, principal drafter of the ordinance, was one of several speakers on Feb. 11, and at a public hearing Jan. 23, who urged the council to adopt it outright rather than follow the charter's provisions for enactment by referendum. "First off there is clearly broad public support for this," Bryant said, citing the more than 800 signatures validated on the petition; the 1,400 signatures on a petition calling for retention of rights in the Shore Acres paper streets; and the town's historic support of public access to protected natural resources.

At the Jan. 23 hearing, nine other speakers supported the ordinance and many called for adoption by the council, rather than by referendum.

Voting against the ordinance on Feb. 11 was Council Chair Jamie Garvin, who said he agreed with the spirit but not with the supermajority stipulation. Only two things - enactment of an emergency ordinance and suspension of Town Council rules - require more than a simple majority vote, Garvin said. "I do have a very fundamental disagreement with the notion of elevating any particular issue or item above anything else," he said. He also said the goals of the ordinance might better be achieved through the comprehensive plan and developing a coastal-access plan, which are Town Council goals for 2019.