Town Council Meeting Report

At the September 11, 2023 Town Council meeting, the council voted on the agenda items listed below.  All members of the council were present.

1.  Approval of Motion to take Item #120-2024 Out of Order and move it to the top of the agenda; 7-0 vote.
Upon hearing Town Manager Matthew Sturgis' update on the town-wide revaluation, which includes a recommendation to delay the project and to change the first half FY 203 Real Estate Tax Due date, Chair Jeremy Gabrielson requested that a motion be made to take Item #120-2023 out of order. Councilor Caitlin Jordan made the motion; Councilor Nicole Boucher seconded.

2.  Approval of Item #120-2023 Changing the First Half FY 2024 Real Estate Tax Due Date; 7-0 vote.
Following the Town Manager's update on the town-wide revaluation, the council voted unanimously to change the date of the first half of FY 2024 tax bill from October 16 to Monday, October 23, 2023; the second half of the tax bill will be due on April 16, 2024.  The Town Manager and Tax Assessor have also recommended that the revaluation project be delayed in order to take more time to complete the project, review property records and values, continue proofing of data, and analyze the conclusions to value for the assessed values.  Once the review, analysis, and final proofing is complete, the new notifications will be sent out to all property owners after the first of the year.  After new notifications are sent, the Assessor and his team will have two months to perform follow up reviews with property owners, make additional adjustments as needed, and have the project completed by the beginning of the FY 2025 budget process in late winter/early spring.

3. Approval of Draft Minutes for August 14, 2023 Regular Meeting; 7-0 vote.

4. Item #113-2023 Request from Councilor Reiniger that the Zoning Ordinance Violation Against the Lumbery be dismissed.  An amended motion to hire a mediator and hold mediation workshop in public with a stay of violation for The Lumbery during the process was made and approved; 5-2 vote. Additional motion was made to move a review fair and effective enforcement of ordinances currently in place; 7-0 vote.
Councilor Timothy Reinger made a motion that the Town Council direct Town staff to take steps to secure a voluntary dismissal of the Cape Elizabeth lawsuit gains The Lumbery.  Councilor Penny Jordan seconded.

Councilor Caitlin Jordan made an amendment to the motion, "Not to vote on a dismissal tonight, but to send this issue to a Town Council workshop.  I propose that that we hold mediation that works on a true solution.  I propose that we hold a workshop in chambers open to the public to witness this mediation process so that we can come to a final resolution.  Additionally, at this workshop we will identify what steps need to be taken and who are the parties responsible to complete each step or task to bring us to a resolution.  During this workshop we will most likely identify ordinances that need to be changed. Recognizing that this process might take up to five months, I would suggest The Lumbery have a stay of violations during this process.  At the completion of this process, it would be the hope that a new site plan can be approved and there will no longer be any issues with violations and or compliance problems.  Prior to the workshop the Town, at our expense, would hire a mediator to sit down with all parties including representatives of The Lumbery, Town Manager, Code Enforcement Officer, and Planner to gather perspective and knowledge leading into mediation.  Additionally, I request that the council consider the amount of money that the Town has already collected from The Lumbery and consider waving the future costs and fees to arrive at such a resolution -- or even to consider reimbursement if that is necessary."  P. Jordan seconded the amended motion.

Reiniger responded to Jordan's amended motion, "I think the sentiments and suggestions are generous and great," but disagrees with the motion because "I don't believe that the council should have the role of acting as a court to go through the facts of the case.  My goal of the motion was to weigh in on not the details; not to act as the court because it is complicated and  we are not another planning board, but to weigh into the the public as a matter of policy to say yes or no to a  lawsuit like this going forward," to protect the image of Cape Elizabeth and "Send a message that we want to be friendly to small businesses."  Councilor Nicole Boucher responded by saying, "It sounds nice to think that part of our charge is to think about the image of Cape Elizabeth, but when I took my oath  it was to uphold the ordinances of Cape Elizabeth -- which is at question here."  

Michael Friedland, one of the owners of The Lumbery, asked that his personal name be removed from the lawsuit and recognized that the judge approved a stay for four months.  "By the way, I think your idea is awesome.  I wish it would have happened years ago. I do think rules are necessary.  It's not that I want to abolish rules I just want to ajust them so that they work for everyone.  I 'm coming to the table whether there is a lawsuit or not.   I am invested in the town and if I am still in violation you still have a right to come after me. It's in my best interest to get these ordinances changed.  That's my motivation; I can't keep existing in a business where the rules say I'm in violation."

The two attorneys involved in the lawsuit will work together to appoint a mediator.  On the amended motion, councilor Reiniger and Susan Gillis voted against the motion.

Chair Gabrielson made an additional motion to move to workshop to conduct a review of current policies in place regarding violations of the land-use ordinance and the process followed when there is noncompliance, "So that we can establish a clear policy framework that says when we will move forward with enforcement action against a property."  Councilor C. Jordan seconded the motion.  The motion was approved unanimously.

5.  Approval of Item #114-2023 Set General Assistance Appendices to Public Hearing; 7-0 vote.
The Town Council sets to public hearing on Wednesday, October 11, 2023 at 7:00 p.m. at the Cape Elizabeth Town Hall to proposed General Assistance Maximums, Appendices A - H for October 1, 2023 - September 30, 2024 and the Recovery Residence Housing Maximums.

6. Item #115-2023 Request from the Ad-Hoc Housing Diversity Study Committee to Extend the Deadline; 7-0 vote.
 The approval grants the Ad-Hoc Housing Diversity Study Committee request to extend their report deadline from September 30, 2023 to December 31, 2023.  In addition, the charge of the committee is amended to reflect the change.

7.  Item #116-2023 Request from the Cape Arena Group Regarding Electricity Expenses.  Motion was made to table until the October Town Council meeting to gather more information and ascertain whether or not the Cape Arena Group can reimburse the town for electricity; 7-0 vote.
At the August 14, 2023 council meeting, the Cape Arena Group requested that that the Town consider funding the electricity expense for the operation of the temporary ice rink at Gull Crest for the 2023-2024 season.  The motivation is that the Town has more favorable electricity rate than the arena group and would be a substantial savings to the group's bottom line expenses.  The council requested that Town Manager Sturgis provide details on the Town's electricity operation expenses.

The Town currently has a contract for electricity supply at $.1366 per kilowatt hour, which would result in an estimated electricity expense of $32,000 for the entire forecasted season of the rink's use.  The net result would be a savings of an estimated $43,000.  This action would also need the Town to add this facility to the existing electricity supply billing and a motion to make a supplemental appropriation in the amount of $32,000.

Chair Gabrielson made a motion to table the discussion until the October council meeting in order to obtain more information and determine whether there is a mechanism for the Cape Arena Group to reimburse the Town for electricity expenses; in addition to include a motion at the October meeting.  Councilor Boucher seconded the motion.

8.  Item #117-2023 Recommendation from the Ordinance Committee regarding Pesticide Ordinance Motion to send to Workshop; 7-0
Councilor P. Jordan moved that the Pesticide Ordinance be moved to a Town Council workshop regarding issues around waivers vs. notifications instead of sending it to public hearing.  C. Jordan seconded the motion.  

9.  Motion to Suspend council rules of ending meeting at 10:00 p.m. in order to complete reviewing agenda items; 7-0 vote.
Chair Gabrielson noted per Town Council rules, meetings that go beyond 10:00 p.m. must be approved by the council in order to proceed.  Councilor P. Jordan made the motion, and Councilor Gretchen Noonan seconded.

10. Approval of  Item #118-2023 Recommendation from the Ordinance Committee Regarding Home Business Amendments to refer to Planning Board; 7-0 vote.
Town Council refers to the Planning Board recommended amendments to Chapter 19 Zoning Ordinance Home Business Amendments as recommended by the Ordinance Committee draft dated August 15, 2023.

11.  Item #119-2023 Request from Councilor Reiniger to Refer to a Town Council Workshop Relating to Attracting and Retaining Non-Residential Small Businesses; 7-0 vote.
Councilor Reiniger requested consideration of scheduling a Town Council workshop to review town policies, organizational structures, and ordinances relating to attracting and retaining non-residential small businesses with goal of identifying specific steps that can be taken by the Town Council and town boards and staff.

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