The Cape Elizabeth Town Council, meeting for the first time Monday with its two new members and a new chairman, amended state-mandated zoning changes for affordable housing that the council had approved last month.
The 4-3 vote in favor of dialing back the changes to meet only the state’s minimum requirements came despite Town Attorney Mary Costigan’s warning that the way the vote came about could be illegal.
The path to the vote drew harsh criticism from some residents and former town councilors, one of whom called the tactic “egregiously duplicitous.”
Gillis
In November, the council 6-1, with Councilor Tim Reiniger opposed, approved zoning amendments to bring the town in compliance with state mandate LD 2003, which is designed to promote more affordable housing throughout the state. Councilor Susan Gillis, after voicing opposition to the amendments multiple times in recent months, voted for the changes. Reiniger and Gillis said they disliked the town’s amendments because they went beyond the minimums required in some aspects, including the maximum size allowed for an accessory dwelling unit. They also opposed a change that allowed people in some parts of town to knock down a single-family home and build more than one unit in its place.
A councilor is allowed to call for a reconsideration to change their vote at either the same, or the following, council meeting, and Gillis did so on Monday. The council then voted 4-3 to replace the November amendments with amendments proposed by Reiniger, the council’s new chairman. Reiniger, Gillis and newly elected Councilors Stephanie Anderson and Tim Thompson voted in favor of the replacement.
Former Councilor Gretchen Noonan, who helped pass last month’s amendments, told councilors at the meeting that a reconsideration vote is to be used only when a councilor changes their mind in light of new information or they believe the ordinance process was rushed.
“I hope Councilor Gillis will tell us what was hasty about a 16-month process with two public hearings and two community forums, or what new information she learned in the last month,” Noonan said Monday. “I don’t think she’ll be able to do it” because the intent was to hold the revote knowing the new councilors would side with her and Reiniger.
“This is just the latest page in the playbook,” said resident Nat Jordan.
Jamie Garvin, another former town councilor, encouraged council members “not to double down” on such tactics by passing Reiniger’s amendments.
“What we saw last month was an example of doing business in the most egregiously duplicitous ways,” Garvin said, referring to Gillis’s initial vote to approve the amendments.
Gillis said that was the “only option” to pass Reiniger’s amendments.
“Yes, I voted for it even though I wasn’t for it because I knew this was the opportunity to overturn it,” she said.
Residents at the meeting pointed out that Reiniger at the November meeting gave a hand gesture to Gillis to tell her to vote for the amendments she didn’t support.
“We both knew that was the only way to do it. We’re not stupid,” Gillis said.
The amendments passed Monday more strongly restrict the maximum size of an accessory dwelling unit to 800 square feet, down from the 1,100 square feet passed in November. Reiniger proposed a 600-square-feet cap, but Anderson proposed raising it because of input she said she had received from residents.
The three councilors who opposed the new amendments, Penny Jordan, Caitlin Jordan Harriman and Jeremy Gabrielson, argued there was another way to pass Reiniger’s proposal: let the amendments passed in November take effect and then bring changes to a council vote after sending them to the Planning Board for review and holding a public hearing on them, which is normal procedure.
Costigan, the town attorney, confirmed that the town charter and state laws require a public hearing before enacting substantive zoning changes. Town zoning ordinances also require Planning Board review, she said. The amendments passed in November were vetted by the Planning Board and were the subject of public hearings.
The reconsideration vote may have also been illegal, she said. A reconsideration is permitted either on the same day or at the meeting after the original vote. However, a change in councilors could mean it should have been referred to a committee instead.
“You have a gray area there,” Costigan said, later adding, “I can’t give you a clear yes or no answer, but I can tell you it is legally questionable.”
Also at Monday’s meeting, which lasted more than five hours until about 12:05 a.m. Tuesday, the council voted to keep Councilor Penny Jordan as co-chair of the ad hoc School Building Advisory Committee. A majority of councilors decided at a caucus last month to replace Jordan with Thompson and have Anderson fill the seat outgoing Councilor Noonan was vacating.
Costigan told the council it cannot remove the chairperson of an ad hoc committee without proper cause. The council then decided to keep Jordan and have Thompson replace Noonan.
Comments are not available on this story.
Send questions/comments to the editors.
