Several waterfront residents in Cape Elizabeth filed a lawsuit against the town Friday – one week before town officials plan to hold facilitated community meetings in the hope of resolving a heated neighborhood dispute over so-called paper streets and seaside public access.

The residents, who live on Pilot Point Road, are seeking a declaratory judgment that they own an undeveloped portion of Surf Side Avenue that runs along the rocky shore between their multimillion-dollar homes and Broad Cove.

The plaintiffs are Imad and Hulda Khalidi, David and Kara Leopold, Andrew Sommer and Susan Ross, Stewart and Julie Wooden, and Rock Dam Development LLC. The limited liability company held by members of Jay Chatmas’ family owns a half-acre lot on Pilot Point Road that is listed for $1 million on a Coldwell Banker website.

The property owners claim the town’s right to establish a public way on that section of Surf Side Avenue has lapsed because they were allowed to encroach on the undeveloped street and “(exhibit) ownership in a manner inconsistent with a public way for a period exceeding twenty years.”

The complaint notes that the abutters have incorporated the paper street into their backyards, installing a wooden deck, a brick patio, a fenced-in garden, an established hedgerow, an irrigation system, stairways, lighting, stone landscaping and fencing.

The plaintiffs asked a Cumberland County Superior Court judge to declare that they own the land delineated as a paper street and that the town has no right to develop the land as a trail or other recreational space for public use.

The plaintiffs pursued court intervention “reluctantly,” according to a statement posted on a blog launched to promote their position.

“As we have tried to work through a town process for the past five years, it has become clear that the outstanding legal issues simply must be resolved,” the statement says. “After dozens of meetings, expert opinions, and countless hours of citizen and town resources, it seems that only a Maine court can fairly adjudicate the legal issues and lay this matter to rest.”

The plaintiffs say they “believe without a doubt that the town’s claim to this century-old hypothetical street lapsed long ago. It is time for an official ruling to resolve this matter, so we can finally have peace in our homes.”

TOWN SEEKS PUBLIC DIALOGUE

Town officials declined to comment on the lawsuit before reviewing it with an attorney, but they plan to go through with facilitated community meetings on Thursday and Feb. 3.

“It’s a valuable opportunity to get everyone’s thoughts as we work toward a possible resolution to this issue,” Town Manager Matt Sturgis said.

Town Council Chairwoman Jessica Sullivan said she sees the meetings as a more relaxed way to solicit new information and ideas that might help town officials address the conflict in the future.

Under Maine law, landowners can lose property rights if another person uses their land for at least 20 years uninterrupted. However, this legal doctrine, known as adverse possession, is widely understood to be ineffective in claiming ownership of government land.

The council struggled last fall to resolve the dispute over a 2,000-foot stretch of paper streets that includes sections of Surf Side Avenue and Atlantic Place, which would connect the western end of Surf Side to Pilot Point Road. The paper streets appeared on a 1911 plan for the Shore Acres subdivision, but were never completed or formally accepted by the town.

While inland residents of the 115-home subdivision have for decades enjoyed the deeded right to hike along Broad Cove, their newer waterfront neighbors have indicated that they want to stop the town from extending that right to the general public.

The council decided in October 2016 to extend the town’s right to accept the paper streets for an additional 20 years, but the abutters and some of their neighbors wanted the council to take immediate action.

Durward Parkinson, an attorney for the town, warned councilors last fall that a decision to either accept or vacate the right could embroil the town in costly and protracted lawsuits.

The town’s Conservation Committee identified Surf Side Avenue and Atlantic Place as potential trails in the town’s 2013 Greenbelt Plan, but it has no plans to install a trail there at this time.

SEASIDE ACCESS IN DISPUTE

A petition signed by 752 residents last fall asked councilors to accept the paper streets “so they will be protected forever and for all Cape citizens to enjoy.”

The general public currently doesn’t have the legal right to be on the paper streets.

At a packed meeting in November, the council was scheduled to either vacate, accept or continue to extend the town’s right to accept the paper streets. Councilors heard lengthy testimony from residents and tossed around several options, such as holding a nonbinding referendum and seeking an easement from the abutters before vacating the paper streets.

Finally, the council voted unanimously to again delay a decision until 2036 and hire a facilitator to help the neighborhood work through its concerns and inform future council actions.

Good Group Decisions of Brunswick is expected to facilitate two-hour sessions at 7 p.m. Thursday and at 10 a.m. Feb. 3, when they will moderate discussion and report on points where participants agree, disagree and are open to negotiation. The firm will be paid $2,500. Any town resident may attend. A report is due in March.

Town officials scheduled the sessions on a Thursday evening and a Saturday morning to ensure that everyone involved has a chance to share their views.

Back in December, some of the abutters said they had no interest in participating, but town officials remained hopeful.

The abutters who filed the lawsuit Friday indicated in their blog statement that they have more faith in the court system.

“Another open-forum meeting will likely aggravate tensions further and cannot settle the fundamental legal issues that separate the town and the residents who abut the paper street,” the blog says. “Maine’s rules of procedure mandate a mediation process in connection with a matter such as ours, and we welcome a real mediation with the town in due course.”

Kelley Bouchard can be contacted at 791-6328 or at:

[email protected]

Twitter: KelleyBouchard

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