SCARBOROUGH — The Town Council approved an agreement with property owners to maintain public access to a pathway leading to Pine Point Beach.

Following two years of debate, the town and abutting property owners of Avenue 2, a beach access path since the 19th Century, reached an agreement that preserves public access in exchange for the town relinquishing rights to the land.

“It’s a win-win for everybody, we increase income from the tax base and we preserve access,” Councilor Chris Caiazzo said after the 4-2 vote Feb. 8.

Two public hearings on the agreement have been scheduled, the first slated for Feb. 21. 

The matter first came to light after property owner Charles Gendron approached the town about discontinuing Avenue 2 because he needed additional land as dictated by setback ordinances to build a larger replacement home on his property, according to Gendron’s attorney, John Bannon. 

Under the new agreement, Gendron can build up to 25 feet from the center line of the path. 

According to council Chairman William Donovan, the path is owned on one side by Gendron, and on the other by Gables on the Sea Condominium Association.

Determining the ownership of the land caused the two-year delay in reaching an agreement. Some councilors and residents believe the town owns the land. 

Under the agreement, the town has a right-of-way easement that preserves public access. The association sought to limit certain types of activity, such as camping and fires, and hours of use, which bothered other town residents committed to preserving public use. 

The limits were nixed from the agreement because town ordinances already regulate public parks.

Councilors Katy Foley and Peter Hayes voted against the agreement. Foley said she believed the town owns the land, and said there were other, creative ways to give Gendron the space he needs.

The town’s attorney, Benjamin McCall, said if the case went to court, it is not certain the town would prevail, meaning the pathway could be designated as private property, and public access could be disallowed. McCall said the goal to protect public access was achieved in the agreement. 

It is not clear whether the town ever formally accepted Avenue 2, so who has ownership of the property was central to working out the agreement, McCall said. He said access to the beach will exist in perpetuity. 

Susan and Don Hamill, on behalf of the Pine Point Neighborhood Association, last week said they are largely happy with the result of negotiations, but criticized the town’s inaction earlier in the process.

The neighborhood association retained its own attorney and asked to be a part of the negotiation process, since it was not invited by the town. “We chose to become involved to ensure the public interest was represented as well as the public’s right to walk the path,” the Hamills said in a telephone interview. 

Dunes near the pathway will also be protected under the agreement, which includes a conservation piece. 

Portions of the agreement the Hamills fought for included keeping the landscape natural, as well as making the path 10 feet wide, instead of the original 5 feet. “We had a positive impact, but it must be said, this was never our first choice,” Susan Hamill said. 

The pathway is known as a paper street, which means it exists only in town plans and is not developed or used as a road.

It has no value to the subdivision owner, and the courts have determined that the abutting property owners to such streets own the property to the middle of the pathway, Donovan said.  The state Legislature has created a process for towns to either retain or extinguish their rights to the land. 

Pine Point Road resident Mo Erickson addressed the council during a public comment period, asking the council to not “give the pathway away.” She said the vote was discouraging, and said the agreement accommodates those with money and influence. 

Juliette Laaka can be reached at 781-3661 ext.,106 or at jlaaka@theforecaster.net.

Attorney Benjamin McCall addresses the Scarborough Town Council Feb. 7. The council approved an agreement between property owners and the town for Avenue 2, a public access path to Pine Point Beach.