Trail layout in the Gull Crest Master Plan (click on graphic for larger image)

Reluctant to forfeit control over open space at Gull Crest, the Town Council postponed accepting an offer from the Department of Environmental Protection that would allow a bridge and boardwalk on the Town-owned parcel.

The Town Council voted June 14 to table acceptance of DEP and Army Corps of Engineers permits until next month, and will use the time to investigate the chances of winning an appeal to the Board of Environmental Protection on a set of permits for the bridge and boardwalk that many councilors found unacceptable.

More precisely, it was the string attached to the permits that made councilors cringe.

In exchange for waiving DEP regulation requiring the structures to be as tall as they are wide, staff at the state DEP offered to allow permitting of an 8-foot wide bridge, and two 4-foot wide boardwalks leading to the bridge, in exchange for an easement on the property.

"My concern is one of binding future councils in perpetuity," said Councilor Mary Ann Lynch. "We would be essentially granting the DEP and the state of Maine substantial property rights on property the Town owns," she said. As discussion continued on the item, Lynch said, "My concern is that the DEP is holding a gun to our head to give them 75 acres of our land."

Councilor Jack Roberts said the agreement would essentially turn over control of anything not developed on the property over to the DEP, an agency he said is notorious for inflexibility. Roberts said he feared, for example, that much of the flat, dry land could not be made accessible in accordance with the Americans with Disabilities Act, or that connections to trails to the High School might not be made, if the DEP held an easement.

The offer was made by staff at the DEP, Town Planner Maureen O'Meara told the council at their meeting June 14. Permits required by the Army Corps of Engineers would also be contingent on the easement.

The application for permitting to build the bridge and boardwalk was part of the council's approval of the Gull Crest Master Plan in 2002.

Permit applications were submitted in May of last year for the Gull Crest trails and a bridge and boardwalk system over the Spurwink Marsh. Following submission of the application for an 8-foot wide bridge and 6-foot wide boardwalks connecting it to dry land, the DEP and Army Corps informed the Town that the boardwalk would need to be elevated as high as it is wide in order to qualify for permitting.

In a memo to the Town Council, Town Planner O'Meara said adhering to the 1:1 elevation rule would create an unsightly, expensive structure that was unacceptable to the Conservation Commission's desires and to the Town's budget.

In an effort to move the project along, the Conservation Commission offered to reduce the width of the boardwalk to 4 feet and elevate it to 2 foot, six inches higher than the height first envisioned. "The DEP and Army Corp agreed in principle to to this compromise with the condition that the easement be granted over the wetland areas to guarantee that no additional impacts will occur," her memo said.

In the eyes of one councilor, the compromise is not so bad. "We would be giving them an easement to protect it in perpetuity," said Councilor Carol Fritz. "It's better protection than we would have otherwise, and it meets the goals of the town."

Others were far less willing to compromise. "I don't think we should back down at all," said Councilor Michael Mowles, unwilling to give up property rights or the design standards the Conservation Commission desired. A 4-foot boardwalk is inadequate for cross-country skiing, Mowles said, an activity many speakers at a public hearing two years ago hoped to encourage on the Gull Crest Trails. "It needs to be done right," Mowles said. "I would not like to see us agree to give up that kind of easement to the DEP without getting what we asked for to begin with," he said.

The Conservation Commission had unanimously recommended acceptance of the compromise. "This bridge is a key element in the whole trail system in town," said Conservation Commission Chairman John Herrick. The bridge over the Spurwink is essential for linking trails in northern Cape Elizabeth to those in southern Cape, he told councilors. "It is perhaps the most important key element in the whole trail network," he said.

Throughout the evening, Town staff and Conservation Commission members recounted how difficult the year-long negotiation had been with the DEP. Mike Duddy, former chairman of the commission who participated in some of the negotiations, advised councilors that if they did decide to appeal to the Board of Environmental Protection, they also should "do it right," using all political and legal means possible. "We'll need to arm ourselves with everything we've got, because that's what it's going to take," Duddy said.

Some councilors bowed to Duddy's concern that a failure on appeal could mean losing the DEP's willingness to compromise.

The fear seemed to dissipate toward the end of the evening, however. An initial vote to accept the compromise passed 4-3, with councilors Lynch, Mowles and McGinty dissenting. But the vote was brought back for reconsideration at the end of the meeting by Councilor Jack Roberts.

The second vote was a unanimous decision to table the approval to find out what the chances are of winning an appeal, and what the cost would be.

Previous story:

• Councilors approve Gull Crest Master Plan (12/09/02)