The Planning Board hold a public hearing on Tuesday, April 15, on a proposed amendment to the Zoning Ordinance that would reduce the RP1 wetland buffer for properties located in the Business A District.

What is the amendment?

The Town of Cape Elizabeth has adopted local wetland regulations in addition to the state and federal wetland regulation. The regulations create two wetland districts:

• RP1 is the wetter, more fragile wetlands that are made up of very poorly drained soils and must be at least one acre in size.

• RP2 wetlands are less wet, made up of poorly drained soils, and are regulated at any size.

The RP1 wetlands also include a 250-foot wide buffer that extends from the upland edge of the wetland and is intended to be an undisturbed, naturally vegetated buffer that protects the functions of the wetland. There is no buffer from RP2 wetlands, although the Planning Board may establish a buffer as part of a Resource Protection Permit review.

There are currently four criteria that allow the 250-foot buffer to be reduced to 100 feet in width. They are: if the RP1 district is a sand dune; if the construction area is topographically distinct from the wetland; if the wetland is less than 2 acres in size; or, if the construction area is in a densely developed area. "Densely developed" is defined as having six or more main buildings within 250 feet of the proposed construction area.

The proposed amendment would add a fifth criterion. The buffer could be reduced from 250' to 100' if the property is located in the BA District and is served by public sewer and water.

How has the amendment been reviewed?

The amendment was first considered in 2005. The Planning Board recommended to the Town Council that the amendment be adopted. At that time, the Town Council did not adopt the amendment, but instead forwarded it to the Comprehensive Plan Committee. The Comprehensive Plan Committee considered the amendment and included it as a recommendation in the Comprehensive Plan adopted by the Town Council in October, 2007.

The Town Council has referred many of the Comprehensive Plan recommendations to the Planning Board for implementation. This amendment was included in the first packages of amendments that the Planning Board was requested to prepare. The amendment was lifted from the package under review and expedited in response to a recent interpretation that no businesses in the BA District located on Route 77 would be able to expand.

How does Rudy's impact the amendment?

Rudy's of the Cape is a small store, located in the BA District on Route 77, which was granted a liquor license by the Town Council last August. As part of this business change, the owner has proposed expanding the number of seats and hours of operation of the store. These changes have triggered a town ordinance requirement for Site Plan Review by the Planning Board.

The site plan subsequently prepared by the owner included several features that "modernized" the site, including a single controlled access onto Route 77, and landscaping around a new parking lot. The site plan also included a proposed outdoor seating area behind the current building. The proposed seating area was the catalyst for a question regarding how much expansion is allowed for a non-conforming use in the RP1 buffer. (To the rear of the property, and most of the BA District, is an RP1 wetland whose buffer extends over the BA District.)

The conclusion of the Code Enforcement Officer is that, while the Zoning Ordinance is explicit in allowing some increase for nonconforming structures in the RP1 buffer, it says nothing about allowing increases in nonconforming uses. Therefore, it must be interpreted to mean that no expansion of nonconforming uses is allowed.

The result is that the Rudy's site plan proposal includes uses that are not permitted and the site plan cannot be submitted to the Planning Board for review.

Why consider adoption of the BA Wetlands Amendment?

Cape Elizabeth has been a leader in vigorous protection of wetlands. Why consider reducing a buffer that protects wetlands? Even in a town where protection of the natural environment is highly prized, a balance must be struck between competing objectives. The current ordinance reflects that by allowing the buffer to be reduced in specific circumstances.

What are these competing objectives? Town residents do not support increasing the amount of land zoned for business uses. This suggests that the land currently zoned for business should be efficiently used to avoid pressure to convert additional land to business uses in the future. The RP1 buffer overlaying the BA District on Route 77 essentially freezes the current businesses and uses with no opportunity for growth or change.

The amendment only impacts properties located in the BA District on Route 77.

How does the proposed amendment balance environmental protection values? Most of the businesses in the BA District, many high quantity water generators, are served by private septic systems located behind the buildings and adjacent to the RP1 wetland. The amendment only reduces the buffer if these septic systems are discontinued and the business connects to the public sewer system. Further, some portion of the 250-foot buffer has already been developed, because the buffer was established after the businesses located on Route 77. Depending on the exact location of the RP1 wetland upland edge, there may only be 100 feet of naturally vegetated wetland buffer existing at this time.

Related Amendments

If members of the public are interested in this amendment, they may also want to be aware of other amendments in process. As part of the Comprehensive Plan recommendations, the Planning Board is working on an overhaul of the BA District Zoning. The current BA District regulations embody a generic commercial district concept. The Comprehensive Plan recommends that the BA District regulations be revised to create a neighborhood business district, with appropriate permitted uses, setbacks and design standards. The BA District overhaul package is currently under development by the Planning Board. The Planning Board will be holding public forum on April 16th and will likely need a few months before they have recommendation for the Town Council to consider.

For more information

Information on these topics is available here on this Web site. In addition, files on the BA Wetland Amendment, Rudy's Site Plan, and the BA District Overhaul are available for public review at the Assessing/Codes/Planning Office at Town Hall, phone 799-0115. Because of the interrelation of these topics, interested parties should ask to review files under all three topic areas.

Previous stories:

• Reduction in wetland buffer fails to garner Town Council votes 07/12/05