By Ward Peck

Editor

    Cape Elizabeth has a problem.

    For years, as outlined in the 1993 Comprehensive
plan and reaffirmed in the draft comprehensive plan about to be
debated, Cape Elizabeth has decided if new development is going to
occur, it knows where in the town it should happen. In zoning parlance
it is known as the “RB District,” that runs along the town’s
northwestern border with South Portland where the municipal boundary
generally parallels Highland Avenue. The town has carefully crafted
land-use regulations, public services and other incentives and
disincentives to make this area more attractive to developers than
other parts of the town.

    The problem is, some of that municipal boundary is
formed by one tributary of Trout Brook, designated by the Maine Dept.
of Environmental Protection (DEP) as an “urban impaired stream” and
virtually the entire RB district falls within the Trout Brook
watershed. As water quality enforcement has moved from the biggest
bodies of water– bays, harbors, big lakes and large rivers–to smaller
bodies such as urban streams, stricter regulations have followed.

    According to Cape Elizabeth Town Planner, Maureen
O’Meara, as regulations currently stand, those wishing to develop in
the Trout Brook must mitigate any damage their development may do to
the watershed by finding a watershed improvement project that will
offset the environmental damage they cause. But the DEP also lays out
an alternative. An organization, such as a municipality, may develop a
watershed improvement plan and fund it by charging developers a fee for
projects that degrade the wetlands.

    According to O’Meara, given a choice between seeking
out an offsite improvement project, negotiating with the landowner and
paying for the engineering costs or paying a one-time fee, developers
would rather, “just write the check.”

    “I challenge you to find a developer who would not
rather pay the fee,” O’Meara said to the Town Council at a recent
meeting where she presented a proposal to establish such a fee.

    According to O’Meara and Town Manager Michael
McGovern the timing of the fee proposal is tied to a proposal headed to
the planning board for a condominium complex on Eastman Road within the
watershed. In March the Council voted to allow the extension of sewer
service to the 30-acre parcel surrounding 60 Eastman Road– paid by the
developer – to allow the project to move forward.

    Both the proposed fee to fund the proposed “Trout
Brook Watershed Community Utilization Plan,” and the scale of
mitigation projects otherwise required, are calculated by the DEP and
largely based upon the amount of impervious service– parking lots,
roofs and roadways– a project adds to the watershed. Asked how much the
average fee might be, O’Meara said the complexity of the calculations
makes estimation difficult, but believes it would be approximately
$15,000 per project.

    Among the anticipated uses for the fee proceeds
contained in the plan are increased water quality testing and data
collection ($20,000); riparian (the area between high and low flow)
buffer restoration ($40,000); storm water outfall erosion Control
($192,000) and “sinuosity restoration,” encouraging the reformation of
a winding stream channel ($302,400).

    Trout Brook and its watershed are also South
Portland’s concern. Recently the planning boards of each community have
met jointly in an effort to harmonize policies within the watershed.
Historically, development on each side of the brook has proceeded quite
differently. While the Cape Elizabeth portion of the watershed contains
farm fields and sizeable amounts of open space and developable parcels,
South Portland Planning and Development Director Tex Haeuser said the
South Portland side is “quite built out,” with limited potential for
new development.

    He said South Portland is focusing it’s own plan on
Long Creek, another stream designated as “urban impaired by the DEP.
Haeuser said South Portland is not currently considering its own Trout
Brook Utilization plan.

    Several councilors at the Cape Elizabeth meeting
questioned which side of the municipal boundary was causing the most
deterioration.

    O’Meara said she hopes to answer that by collecting more data, financed by the fee.

    Councilor Cynthia Dill questioned whether it was
fair to penalize new homeowners, who will likely see the fee reflected
in the sale price, to pay for the stream degradation caused by others.
Councilor Mary Anne Lynch moved to set the debate aside and schedule a
public hearing in order to let others weigh in on the town imposing a
new fee.

    O’Meara argued that whether or not a fee is imposed,
the urban impaired stream designation amounts to a disincentive to
develop within the watershed “that contradict local growth management
policies.”

    If it is less lucrative or riskier to develop within
the watershed, developers will look elsewhere in town to develop.

    To counteract this disincentive, O’Meara proposed a
second fee that would match the Trout Brook Watershed fee but would
only apply to development outside the watershed.

    The second fee, called the “Stormwater Improvement
fee” would function as a leveler that makes it equally more expensive
to develop outside the watershed. While funds from the watershed fee
would be required to finance improvements to Trout Brook water quality,
the town has more flexibility to use the proceeds from the stormwater
fee.

    O’Meara proposes to use those funds to improve stormwater management throughout the town.

    The public hearing on the fee will take place at the
next Cape Elizabeth Town Council meeting, scheduled for Monday,
September 10.