Regular Meeting # 1 -2011

Cape Elizabeth Town Hall
Monday, December 13, 2010

7:30 p.m.

00:10 Oaths of Office Administered by the Town Clerk
Officials Elected November 2, 2010
for Three Year Terms to Expire on December 9, 2013

00:47 Cape Elizabeth School Board
Kimberly J. Monaghan-Derrig
Michael C. Moore

01:56 Cape Elizabeth Town Council
Frank J. Governali
Caitlin R. Jordan

03:06 Roll Call by the Town Clerk
Frank J. Governali 18 Old Ocean House Road 799-5842 12/2013
Caitlin R. Jordan 83 Old Ocean House Road 799-7743 12/2013
Sara W. Lennon 54 Cranbrook Drive 741-5139 12/2012
David S. Sherman, Jr. 74 Hunts Point Road 749-2668 12/2011
Jessica L. Sullivan 38 Cranbrook Drive 774-0115 12/2012
Anne E. Swift-Kayatta 14 Stone Bridge Road 767-5754 12/2011
James T. Walsh 23 Rock Crest Drive 799-6730 12/2012

03:23 The Pledge of Allegiance to the Flag
05:13 Town Council Reports and Correspondence
09:51 Citizen Opportunity for Discussion of Items Not on the Agenda
06:20 Town Manager’s Report
06:29 Review Minutes of November 8, 2010 Meeting

10:47 Item# 1-2011 Election of a Town Council Chairman for Council Year 2011
David S. Sherman, Jr.
On this and the other items relating to council organization, the names listed are the persons who appeared to be the consensus choices at the Town Council caucus. Link to Caucus Results Spreadsheet

11:59 Item# 2-2011 Annual Adoption of Town Council Rules
Adoption is recommended.

12:30 Item# 3-2011 Appointment of the Finance Committee
Sara W. Lennon as chairman and the Council as a whole to serve as the finance committee

Item# 4-2011 Appointment of an Ordinance Committee
James T. Walsh as chairman and Frank J. Governali and Anne E. Swift-Kayatta as members

Item# 5-2011 Appointment of an Appointments Committee
Jessica L. Sullivan as chairman and Caitlin R. Jordan and Sara W. Lennon as members

Item# 6-2011 Appointment of Representatives to ecomaine Board of Directors
Caitlin R. Jordan and Michael K. McGovern for terms to expire on December 31, 2013.

Item# 7-2011 Appointment of Representative to Greater Portland Council of Governments Executive Committee
James T. Walsh

Item# 8-2011 Appointment of Representative and Alternate to Greater Portland Council of Governments General Assembly
Sara W. Lennon
Caitlin R. Jordan, Alternate

Item# 9-2011 Appointment of Representative to PACTS Policy Committee
Michael K. McGovern

Item# 10-2011 Appointment of Representative to MMA Legislative Policy Committee and MMA Convention Delegate
Anne E. Swift-Kayatta

Item# 11-2011 Appointment of Representative to Thomas Memorial Library Foundation
Jessica L. Sullivan

Item# 12-2011 Appointment of Representative to Alternative Energy Committee
Sara W. Lennon

Item# 13-2011 Appointment of Representative to Greater Portland Economic Development Corporation
James T. Walsh

15:07 Item# 14-2011 Appointment of Citizens to Fill Vacant Position on Boards and Commissions
The 2010 Appointments Committee is recommending citizens for vacancies on boards and commissions.

Board Recommended Term Expires Address
Board of Assessment Review David B. Scheffler 12/31/2013 12 Pheasant Hill Road
Arts Commission Genesta L. Berry 12/31/2013 3 Seal Cove Lane
Arts Commission Julia Bassett Schwerin 12/31/2013 6 Cottage Lane #2
Arts Commission Mary Beltrante 12/31/2013 2 Strout Road
Arts Commission Sheila Casey 12/31/2012 One Village Lane
Community Services Advisory Commission Susan Haversat 12/31/2013 12 McAuley Road
Community Services Advisory Commission Michael J. O'Connor 12/31/2013 4 Hemlock Hill Road
Conservation Commission Zach Matzkin 12/31/2013 77 Scott Dyer Road
Conservation Commission John S. Marchewka 12/31/2013 111 Old Ocean House RD
Fort Williams Advisory Commission Frank Butterworth 12/31/2013 21 McAuley Road
Fort Williams Advisory Commission Lise Pratt 12/31/2013 32 Wood Road
Personnel Appeals Board Christopher Taintor 12/31/2013 6 Jordan Farm Road
Personnel Appeals Board Dawn M. Harmon 12/31/2012 9 Blueberry Road
Planning Board Elaine S. Falender 12/31/2013 16 Mares Hollow Lane
Planning Board Henry Steinberg 12/31/2013 13 Hunts Point Road
Recycling Committee Patt Salve Bothel 12/31/2013 90 Ocean House Road
Recycling Committee Peter Frye 12/31/2013 28 Southwell Road
Recycling Committee William H. Marshall 12/31/2013 10 Wildwood Drive
Riverside Memorial Cemetery Trustees Beverly Brooking 12/31/2013 208 Two Lights Road
Thomas Memorial Library Trustees RuthAnne Haley 12/31/2013 49 Brentwood Road
Thomas Memorial Library Trustees Ken Piper 12/31/2013 3 Birch Knolls
Thomas Memorial Library Trustees Molly MacAuslan 12/31/2013 37 Park Circle
Thomas Memorial Library Trustees Stephen Owens 12/31/2012 33 Crescent View Avenue
Zoning Board of Appeals Jeffrey A. Schwartz 12/31/2013 12 Manter Street
Zoning Board of Appeals Leonard M. Gulino 12/31/2013 5 Park Circle

16:41 Public Hearing: Proposed PACE Ordinance

22:55 Item# 15-2011 Proposed PACE Ordinance
The Ordinance Committee has recommended a proposed ordinance to enable citizens to participate in a federal/state program administered by the Efficiency Maine Trust that would assist residents with receiving loans for energy efficiency improvements. A representative of the Efficiency Maine Trust will be present to answer any questions. (FAQ)

33:17 Item# 16-2011 Planning Board Revised Rules
The Planning Board has approved new rules of procedure for the conduct of their meetings and is requesting Town Council approval. Sec. 4-1-3 of the Code of Ordinances provides that by-laws of boards and commissions become effective upon Town Council approval. This item was tabled at the November 8, 2010 meeting but has been assigned a new agenda item number as it is a new Council year.
Link to As Approved by Planning Board
Link to Redlined Version Showing Proposed Changes
Link to MMA Legal Comments on Proposed Planning Board Rules

01:00:12 Item# 17-2011 Driveway Entrance Permit Appeal - 6 Stonegate RD
Robert H. Stier, Jr. of 9 Rock Crest Drive has appealed a decision of the Director of Public Works to issue a driveway entrance permit for 6 Stonegate Road . The Town Council will hear the appeal. Councilor Swift-Kayatta will ask to be recused.

02:37:34 Move to Executive Session
02:56:37 Return to Public Session

03:01:44 Item# 18-2011 Fort Williams Park Group Use and Commercial Fees (Proposal)
The Fort Williams Advisory Commission is recommending revisions to existing fees at Fort Williams Park. The proceeds are dedicated for the Fort Williams Park Capital Fund for improvements within Fort Williams Park

03:03:03 Item# 19-2011 2011 Beach to Beacon Road Race Use of Fort Williams Park
As part of the review of group use fees for Fort Williams Park, it was clear that the TD Bank 10K Beach to Beacon Road Race did not fit into any exact category due to its setup over several days and its relatively brief but very intensive use of the park on the day of the race itself. After discussion in workshops with the Town Council, it was the consensus that the Town Manager would meet with the President of the Beach to Beacon organization to discuss a group use fee for use of the park. The Town Manager presented to the Fort Williams Advisory Commission at a recent meeting a proposal to set the group use fee for the race at $25,000 with the race to continue to pay all of the Town’s out of pocket expense. The Fort Williams Advisory Commission unanimously concurred with this proposal. It is before the Town Council for consideration at this meeting and will be formally considered by the Beach to Beacon Board at their annual meeting held each December. The proceeds are dedicated for the Fort Williams Park Capital Fund for improvements within Fort Williams Park .

03:05:01 Item # 20-2011 Purpoodock Club Annual Liquor Licenses
It is proposed to approve the annual liquor and related licenses for the Purpoodock Club. Councilor Sherman will ask to be recused.

03:06:12 Item# 21-2011 Recycling Center Fees (Proposal)
The Town Manager is recommending revised fees for use of the Recycling Center as proposed by the Director of Public Works.

03:11:01 Item # 22-2011 MDOT Response on Route 77 Speed Limit Request
On April 12, 2010, the Town Council voted to request the Maine Department of Transportation to review the speed limit on Route 77 near the intersection of Broad Cove Road . This followed a Planning Board requirement for a cross walk across Route 77 in this location for off site parking for Rudy’s. Crosswalks are not allowed unless the speed limit is 35 mph or less and the speed limit in this location is 40 mph. The request was mailed to MDOT on April 13th. On December 1, 2010, we received the MDOT response that the speed limit will remain 40 mph. It is proposed to receive the report and to request the staff to inform the Planning Board.

03:12:34 Item # 23-2011 Comprehensive Plan Implementation Follow-up
Last month the Town Council approved a framework for continued implementation for the 2007 Comprehensive Plan. This item and the three which follow are intended to begin implementation of the framework. First, it is recommended that the Town Council affirm the vision statement for the Comprehensive Plan:

The vision represented by this Comprehensive Plan is to preserve Cape Elizabeth as a highly desirable community in which to live by the following: expanding open spaces and accessible trails; encouraging the preservation of working farms; continuing the current slow pace and pattern of development; maintaining excellent educational and municipal services; cultivating the Town Center as a mixed use commercial area; supporting the high levels of citizen involvement in town activities; and balancing services and costs

03:13:51 Item # 24-2011 Comprehensive Plan Implementation Follow-up Re: Planning Board
It is recommended to send the following memorandum to the Planning Board:

At the December 13, 2010 meeting, the Cape Elizabeth Town Council voted to direct the Planning Board to stop working on implementation of the Comprehensive Plan as directed in the January 2008 memo from the Town Council.

The Town Council has decided to focus Comprehensive Plan implementation efforts on the Recreation and Open Space chapter of the Comprehensive Plan. The Town Council will be appointing a committee (see attached committee description) to take the lead on implementing open space recommendations and requests that the Planning Board choose a member of the Planning Board to be a representative on this committee.

The Planning Board may wish to note that the Town Council Ordinance Committee will be reviewing growth areas identified in the Comprehensive Plan. Any changes that will result in amendments to the Zoning Ordinance or Zoning Map will also be forwarded to the Planning Board in the future.

03:14:49 Item # 25-2011 Comprehensive Plan Implementation Follow-up Re: Proposed Future Open Space Preservation Committee
It is recommended to approve the following authorization for a new Future Open Space Preservation Committee and to appropriate $25,000 from the undesignated surplus for the committee’s use which includes the cost of a professionally administered public opinion survey.

Future Open Space Preservation Committee (FOSP)


The Cape Elizabeth Town Council has decided that the Recreation and Open Space chapter recommendations of the Comprehensive Plan should be implemented before further implementation of the Land Use Chapter. In order to implement these recommendations using a public process that (1) is consistent with the Town Council Communication Strategy, (2) incorporates the Cape Farm Alliance and the Cape Elizabeth Land Trust and (3) respects private property rights, the Town Council is creating the Future Open Space Preservation Committee (FOSP).

Committee Structure

The Future Open Space Preservation Committee (FOSP) shall consist of ten members. The Town Council, following a recommendation from the Appointments Committee, shall appoint three citizens that shall be broadly representative of the entire community. The Town Council shall designate two Town Councilors and a member of the Ordinance Committee to serve on the committee. The Conservation Commission and Planning Board shall each designate one person representative of their bodies to serve on the committee. The Town Council also requests the Cape Farm Alliance and Cape Elizabeth Land Trust to designate one representative from each of their organizations to serve on the committee. The committee shall appoint its own chair and secretary. The Town Manager shall designate a principal staff person for the committee. It is also anticipated that consultants specializing in public survey and open space funding will be retained by the Town for specific projects that will be used by the committee.

Committee Charge

1. FOSP shall coordinate with the Cape Farm Alliance (CFA) and the Cape Elizabeth Land Trust (CELT) and solicit from them any information, inventories, etc. regarding future open space preservation priorities.

2. FOSP shall supervise a professional, statistically relevant telephone survey of town residents identifying priorities for specific parcels for open space preservation and preferred methods of funding.

3. FOSP shall prepare for the Town Manager’s approval a Request for Proposals (RFP) for a consultant to:

Conduct an analysis of the costs and benefits to the town budget of development versus retention of open space. The analysis should draw on state and national resources to conduct this study. The objective is to determine the cost and benefits to taxpayers of housing growth versus the preservation of undeveloped land.

FOSP shall then review and make recommendations regarding the consultant’s report.

4. FOSP shall conduct a public workshop with the CFA and CELT focusing on actions that both protect open space and promote sustainable farming, without constraining farmers’ opportunities and infringing on private property rights.

5. FOSP shall develop “rural areas” and “open space” definitions for the Town of Cape Elizabeth. The committee shall consider (1) state law, (2) farmers’ flexibility in using land on a long term basis, (3) the impact on other significant land owners, and (4) residents’ priority in protecting rural areas.

6. FOSP shall identify specific key parcels of land in town that are of the highest priority. A comprehensive review of vacant lands in Cape Elizabeth should be undertaken to determine which areas exhibit the most important habitat features, recreational opportunities and whose preservation would help to ensure the town retains its rural character, including large undeveloped areas, agricultural uses of the land and scenic vistas.

7. FOSP shall develop a range of tools and approaches to preserve/protect/enhance critical parcels. These tools should be expansive and include innovative approaches that have been successfully employed nationwide, including zoning, outright land purchases, elimination of incentives for development in critical parcels, methods by which land can be purchases in private/public partnerships, and any other creative approaches other towns have taken. At the same time, all of the approaches that are considered and recommended have to avoid infringement on personal property rights.

8. FOSP shall prepare, for Town Council discussion, an evaluation of the financial resources necessary to achieve the strategic conservation priorities identified. Financial resources may include, but are not limited to, funding by town taxpayers, individual donations (land or dollars), donations and grants through CELT as well as State and Federal conservation funding programs.

9. FOSP shall prepare a final report summarizing its work and submit it to the Town Council.


The Town Council authorizes funding of $25,000 for the cost/benefit/funding consultant and other miscellaneous committee expenses including the cost of the public opinion survey

Completion of FOSP work

All work of the committee shall be completed within 12 months of the first meeting of the committee. A progress report shall be provided to the Town Council six months after the committee begins to meet. In addition, FOSP is encouraged to provide recommendations to the Town Council as individual items are completed.

03:17:40 Item # 26-2011 Comprehensive Plan Implementation Follow-up Re: Ordinance Committee to Review Growth Areas
The Town Council refers to the Ordinance Committee a review of the designated Growth Areas.

03:18:17 Item # 27-2011 Easement Relocation at 876 Shore Road
It is proposed to accept an easement for the relocation of drainage infrastructure at 876 Shore Road . The easement is from Beverly M. Sherman and the Beverly M. Sherman Qualified Personal Residence Trust. Disclosure: Councilor Sherman is related to Beverly Sherman and has not discussed this issue with any municipal official. He will ask to be recused on this issue.

03:19:54 Item # 28-2011 Annual Acceptance of Gifts
It is proposed to accept with appreciation all gifts given to the Town of Cape Elizabeth in 2010.

03:20:31 Item # 29-2011 Community Center Space Lease
The school facilities director has negotiated with a tenant for the final unoccupied space at the office building in front of the community center. This is the third of three leases over three months. This one to local attorney Michael Moore for 160 square feet adds $3,000 annually to revenues for Community Services. The previous two leases added $12,600. In addition, tenant Edward Jones pays $15,080 annually. Thus, the full rental income for the building is $30,680 annually. It is recommended you authorize the lease with Michael Moore.

03:22:39 Item # 30-2011 Credit Card Payments for Tax Bills
In February 2011, concurrent with the printing of tax bills due in early April 2011, the Town may begin to accept payments by credit and debit card for tax bills. The system we are proposing to utilize is fully integrated with our regular tax billing and receipts system. It will also enable citizens to choose to receive their tax bill electronically instead of by paper.

Maine law permits municipalities to recover costs for use of cards and electronic funds transfers. The transaction fees are as follows:

Electronic funds transfer with electronic check- 40 cents
Use of Credit Card: 2.95% of value of transaction
VISA Debit Card: $3.95 per transaction.

It is proposed to have these fees paid by users of the service. If we accepted credit cards without passing along the fees and 20% of the total amount owed ($24,037,115 * .10*.0295) was paid by credit card, the Town would incur an expense of $141,818.

03:28:10 Item # 31-2011 Riverside Cemetery Trustees Public Participation Process The Trustees of Riverside Cemetery have approved rules for the participation of the public at their meetings. They will be effective upon Town Council approval.

03:36:21 Item # 32-2011 Property Tax Abatement Request Due to Infirmity or Poverty It is recommended that the Town Council in conformance with 1 MRSA §405 6 F enter executive session to review a request for a poverty abatement.

03:29:19 Citizen Opportunity for Discussion of Items Not on the Agenda

03:35:36 Financial Reports 11 30 2010

Miscellaneous Letters

03:35:46 Upcoming Meetings

Museum at Portland Head Light Board is After December 13th Town Council Meeting
Portland Head Light Gift Shop Sales Information

Thomas Jordan Trustees Meeting Follows Portland Head Light Meeting

Town Council Meetings in 2011 Workshop Meetings
January 13 January 3- Goals and Meeting with Legislators
February 14 February 7
March 14 Finance Committee- To be determined
April 11 and 25 Finance Committee- To be determined
May 9 May 2
June 13 June 6
July 11
August 8
September 12 September 6
October 12 October 3
November 14 November 7
December 12 December 5

Public Participation at Town Council Meetings
After an item has been introduced, any person wishing to address the council shall signify a desire to speak by raising their hand or by approaching the lectern. When recognized by the chairman, the speaker shall give his or her name and address or name and local affiliation, if the affiliation is relevant, prior to making other comments. All remarks should be addressed to the Town Council. Comments shall be limited to three minutes per person; however, the time may be extended by majority vote of councilors present. For agenda items that are not formally advertised public hearings, the time for public comments is limited to 15 minutes per agenda item. This time may be extended by a majority of the Town Council. The chairman may decline to recognize any person who has already spoken on the same agenda item and may call on speakers in a manner so as to balance debate. Once the Council has begun its deliberations on an item, no person shall be permitted to address the Council on such item.

Speaking at the meeting on topics not on the agenda at regular Council meetings
Persons wishing to address the Council on an issue or concern local in nature not appearing on the agenda may do so at a regular Town Council meeting before the town manager’s report and/or after the disposition of all items appearing on the agenda. Any person wishing to address the Council shall signify a desire to speak by raising their hand or by approaching the lectern. When recognized by the chairman, the speaker shall give his or her name and address or name and local affiliation if the local affiliation Council. Comments in each comment period shall be limited to three minutes per person and 15 minutes total; however, the time may be extended by majority vote of councilors present.

Persons present at Council meetings shall not applaud or otherwise express approval or disapproval of any statements made or actions taken at such meeting. Persons at Council meetings may only address the Town Council after being recognized by the chairman.