CAPE ELIZABETH — The Planning Board has taken precautionary action after a perceived legal threat to the town was noted in an email.

The board recommended in a memo to the Town Council that an amendment be made to the Open Space Zoning Ordinance to clarify a provision that agricultural land may be preserved as part of open space in a new development in order to avoid any chance of a lawsuit. 

The concern of some residents is that the amendment is being proposed in the midst of deliberations on a major housing development, Maxwell Woods

The Town’s Open Space Zoning Ordinance requires at least 40 percent of a development to be left as open space.

Priorities for open space are listed in the zoning ordinance as wetlands or wildlife habitats, agriculture, greenbelt and recreational areas, and scenic character. 

The proposed amendment states that agricultural land preserved as open space in a development must meet the requirements of “farmland” as it is defined in the state’s Farm and Open Space Tax Law. However, the land to be preserved under this subsection can be less than 5 acres and deemed “farmland” if it is part of a parcel of farmland that is at least 5 acres.

“The reason (the Future Open Space Preservation Committee) grabbed that state definition is because, when they were making recommendations to make agricultural land a higher priority, they tried to write a definition (for agricultural land) and they got stuck,” O’Meara said. 

Maxwell Woods developer Joel FitzPatrick plans to build 46 condominiums on nearly 18 acres of land on Spurwink Avenue, with about eight of those acres set aside as open space. Of those eight acres, two are proposed as an agricultural easement, to be farmed by the Bamfords, owners of Maxwell Farm. The two acres immediately abut land they currently farm.

“This would allow them to continue to own the land and grow on it, but they wouldn’t be allowed to develop it … they could only use it for agricultural purposes,” O’Meara said.

The Planning Board’s interpretation of the state’s standards for farmland would allow these two acres to be considered agricultural land because the Bamfords already own more than five acres of farmland in town. 

How the Bamfords plan on farming and preserving the two acres will be stated in the agricultural easement they submit with FitzPatrick’s final project proposal. 

A May 22 email from Cape Elizabeth resident Paul Seidman to a group of other residents expressed concern with the development. Seidman’s email mentioned a “co-application fiasco,” referring to a decision by FitzPatrick to sign the Bamfords as the development’s co-applicants just before Maxwell Woods was granted preliminary approval on May 18. FitzPatrick is expected to apply for final subdivision approval in August. 

“(The town’s) lawyers need to know they’re on thin ice,” Seidman wrote. “We need a big ole spotlight on this one.” 

Seidman and others feel that the proposed zoning ordinance amendment is being rushed through. O’Meara said there is nothing illegal about signing the Bamford’s as co-applicants. 

“No project is approved the way it’s submitted. It is a process, and the process inherently requires the plan to change and it’s normal,” O’Meara said.

Seidman said the “the problem is the process and procedure … 11th hour changes…(and) seeking law changes to suit a single development.” 

During the Town Council meeting on Monday, July 10, he said that despite his concern, his email was not meant to be public, nor did he intend to suggest any legitimate legal threat to the town.

But other residents are unsettled.

“The Planning board wants to change the ordinance to eliminate the minimum requirement of five acres,” resident Becky Fernald said. “This is a really big issue for the town. … It’ll have consequences for land use for our town in the future. (It) needs to be carefully thought out and deliberated and should not be rushed.”

O’Meara explained that no changes are being made to any ordinances, only clarifications. 

“Because the state definition said that a farm has to be five acres, we have some people that say you can’t accept an (agricultural) easement unless it is five acres,” O’Meara said. “Our attorney has said there is room in that definition to interpret that the easement can be any size, but it has to come from a farm that’s at least five acres in size … so you still meet the definition of farmland, but you don’t take that five acres and make it apply to each easement.”

Ultimately, the motion to send the proposed amendment to the Ordinance Committee was approved unanimously by the Town Council.

On Tuesday, after reviewing the amendment, the town’s three-member ordinance subcommittee unanimously sent the ordinance back to the council with a recommendation to review and approve it at its Aug. 14 meeting, where the council is required to hold a public hearing. 

“That is the standard process for all zoning and subdivision amendments,” O’Meara said. 

In the memo sent to the council, the Planning Board acknowledged that “processing ordinance amendments during a development review process is awkward … (but the board) takes seriously its responsibility to make legally defensible decisions (and), for this reason, it recommends the Town Council adopt the Agricultural easement amendment.”

Councilor Caitlin Jordan said during Tuesday’s Ordinance Committee meeting that FitzPatrick is expected to proceed with his development proposal as planned, regardless of the town’s eventual action on the amendment. 

In a conversation two weeks ago, FitzPatrick expressed confidence that his proposal would succeed.

“All of the other issues the opponents (of Maxwell Woods) have had (with the development) haven’t really worked out for them, so this is just another,” he said. “Hopefully (it is) their last.”

Jocelyn Van Saun can be reached at 781-3661, ext. 183 or [email protected]. Follow her on Twitter @JocelynVanSaun.