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Council approves new definition for shoreland-zone boundary

Cape Elizabeth is changing the way it determines the boundaries of the shoreland protection zone.

By a 5-2 vote, the Town Council on Aug. 11, 2014 agreed to use tidal elevation, rather than a visual inspection of tidal landmarks, to determine the "normal high water line" of coastal waters. The line serves as the outermost boundary of the shoreland zone. Development is limited within 250 feet of the boundary, and none is allowed within 75 feet.

Following a public hearing, councilors voted to use the value of the highest astronomical tide, plus 3 feet, as the shoreland boundary.

Current town ordinance defines the normal high water line as "That line on the shore of tidal waters which is the apparent extreme limit of the effect of the tides, i.e. the top of the bank, cliff or beach above high tide."

Relying on landmarks to determine the high water line posed a problem for Ben McDougal, who proposed the ordinance change soon after starting as code-enforcement officer here early last year. "During my first five weeks as code enforcement officer, the biggest question for me has been, 'How will I interpret the definition of Normal High Water Line of Coastal Waters?'," McDougal wrote in a memo in March 2013. It could be the top of a bank, which could be 50-80 feet higher than where the tide actually goes. Or, it could be a stain on the rocks, falling far short of where the highest tide actually goes, his memo said.

Traditionally the code-enforcement officer has determined shoreland boundaries case-by-case, but McDougal said this method exposes the town to litigation. "I would recommend that the town have a definition that enables land-use professionals to determine the line based on objective and scientifically sound criteria," McDougal's memo said.

McDougal suggested the town use the highest annual tide elevation, but the Planning Board instead recommended the astronomical tide, measured over 19 years, as more stable and predictable. Adding 3 feet accounts for rising sea levels and storm surge, according to the board's recommendation.

Speakers at a public hearing Aug. 11, however, said they believed the extra 3 feet might render some properties unbuildable, and asked councilors to provide more information on how the change would affect individual properties. "If it's going to take my property rights as the owner, or diminish those in any way, I would object," said Bill DeSena, whose Wainwright Drive property is near the Spurwink River.

Some speakers with property in low-lying areas objected to adding 3 feet to the normal high water line elevation. "I am concerned that it would go up into my property perhaps prohibit building on to the back side of my house," said Wells Road resident Nancy Ahlsen, whose is also near the Spurwink Marsh. "How far up it would go on my property? Is it going to interfere with my rights as a property owner?"

Other speakers living near higher, rocky shore said the change would weaken current shoreland protection by moving the normal high water line away from the land. Another, Tides Edge Road resident Roy Strunk, said the proposal fails to consider the diversity in Cape Elizabeth's coastline. "I don't know the solution, but I think that 'once-size-fits-all' is not the solution," he said.

The two councilors who voted against the proposal said they were concerned that the new definition might result in a taking of private property. "I'm still concerned with the public comments made tonight that we still need more information," said Councilor Jamie Wagner. Councilor Caitlin Jordan, who also voted against the zoning ordinance amendment, said she was concerned that residents were only just finding out about the proposal; and, that adding 3 feet to the astronomical high-tide measure was unnecessary. "As we saw it's what creates a lot of the concern with the takings," Jordan said.

Other councilors, however, agreed with Councilor Kathy Ray, who said the majority of low-lying properties are already regulated by the town's wetlands laws.

Answering a question from Councilor David Sherman, Town Planner Maureen O'Meara said the town does not have the data required to gauge the effect the new definition will have on individual properties. "Because every single point has to be verified by the code officer standing out in the field saying 'this is the point' ", she O'Meara said. "And that has been the issue the code officer's had, and that's why he came to you in the beginning and asked for something that's clearer," she said.

Along with the new definition of the normal high-water line, the zoning ordinance amendment approved by the council includes language saying that the current shoreland zoning map is based on the best available information, and that all determinations of the shoreland zone boundary will be field-verified.