Yarmouth Town Council Resolution Passed March 16, 1995 (4-1-0, Ryder opposed)

This resolution was passed in response to the Town of Cumberland's request for guidance regarding a possible new ferry facility to be located on Cousins Island Central Maine Power Company land.

WHEREAS, the Town of Yarmouth and the Town of Cumberland have a mutual interest in exploring practical options to the current location and operations of Chebeague Transportation Company from Wharf Road and the Blanchard lot on Cousins Island, and

WHEREAS, the Town of Cumberland has solicited advice and guidance from the Yarmouth Town Council on a revised proposal dated January 27, 1995, to relocate ferry, parking and barging services from Wharf Road and the Blanchard lot to land owned by Central Maine Power Co. on Cousins Island;

WHEREAS, the Yarmouth Town Council is generally supportive of the proposal as submitted in concept form and desires to have the Cumberland Town Council to continue to refine the details of the plan consistent with the advice and guidance offered by the Yarmouth Town Council, and

WHEREAS, the Town of Cumberland, Chebeague Transportation Company, the residents of the Town of Yarmouth and Central Maine Power Co. each are on notice that such advice and guidance and the nature of this resolution merely represents an advisory opinion of the Yarmouth Town council and in no way creates a commitment, obligation, promise, or approval of the town that such relocation will ultimately be approved or authorized.

NOW, THEREFORE, BE IT RESOLVED by the Yarmouth Town Council in town council assembled that the following advice and guidance is hereby offered to the Town of Cumberland in regards to a revised proposal to relocate barge, ferry and parking facilities at land owned by Central Maine Power Co. on Cousins Island. The Yarmouth Town Council is favorably inclined to the proposal provided the following conditions are met:

ONE : Total parking capacity at the CMP site shall be limited to an amount not to exceed 165-265 vehicles, including 15 spaces reserved for Yarmouth residents to be allocated by the Yarmouth Town Council, all laid out and marked for quick and reliable compliance monitoring, and effective measures to enforce this condition.

TWO: All ferry service (boat) operations shall be limited to the same degree and to the same nature as is currently provided in Article 1 (a-f) of an agreement between the Towns of Yarmouth and Cumberland dated June 6, 1989, and effective measures to enforce this condition are established.

THREE: The Town of Cumberland shall reimburse the Town of Yarmouth for all costs required to prepare and review complete and reliable traffic impact analyses to the satisfaction of the Yarmouth Town Council. Such analysis shall be undertaken by professional traffic engineers utilizing generally accepted methodologies and assumptions. And, the Town of Cumberland should be advised that if upon review of the results of such traffic study, Yarmouth Town Council concludes in its sole discretion that the relocation will create significantly increased traffic or safety demands on Cousins Island generally, then the Yarmouth Town Council will be unlikely to authorize the relocation of services, or may impose more restrictive parking limits.

FOUR: All ferry, barging, and related parking activities at Wharf Road, Blanchard lot or elsewhere in the Town of Yarmouth shall cease and shall not be resumed or initiated anywhere except at the CMP site or outside the territorial boundary limits of the Town of Yarmouth.

FIVE: The Yarmouth Town Council is inclined to disapprove the relocation of any services unless all barging operations shall be permanently and completely removed from the Town of Yarmouth, but shall withhold judgment on this issue pending more detailed proposals and economic analysis by the Town of Cumberland. To the extent that the Yarmouth Town Council may consider an authorization for barging operations, such authorization would be limited as follows:

All barging activity is strictly limited as provided in subsection 4 of the second amended Judgment and Order (Cumberland County Superior Court Civil Docket No. 86-722) authorized by the Yarmouth Town Council on December 15, 1994, or a mutually agreeable substitute set of barging standards and operations limits.

SIX: Swift and effective enforcement mechanisms to assure continuous compliance with all conditions of approval shall be established and secured. Such mechanisms may include but are not limited to the following:

a) Landlord rights granted to the Town of Yarmouth as an intermediary or co-signatory to any lease agreement by and between Central Maine Power Co. and the Town of Cumberland, Chebeague Transportation or any other lessee or assignee with tenancy rights as contemplated for the purposes of this project. Such landlord rights to include the right to terminate the lease for breach of the conditions of the lease and other rights of relief available under law; or

b) The establishment of a performance security escrow or unrevocable letter of credit to the satisfaction of the Town of Yarmouth that will enable the Yarmouth Town council to assess and collect substantial monetary penalties against the Town of Cumberland for breach of any of the conditions of approval. Such penalty assessments shall be available by summary judgment of the Yarmouth Town council upon notice and hearing, and shall not be appealable except for questions of fact; or

c) Waiver of rights by the Town of Cumberland of any claims, defenses, or assertions of sovereign immunity, powers of eminent domain, or vested rights to secure, continue or resume the contemplated activities against enforcement actions for violations of the zoning ordinances or other land-use regulations of the Town of Yarmouth; or

d) The creation of an independent fact finding and arbitration panel granted authority to hear complaints, resolve disputes, and order actions to correct violations of the conditions of approval, but not to waive or modify the conditions of approval.

e) Other mechanisms of enforcement and dispute resolution mutually agreeable to the Towns of Cumberland and Yarmouth.

f) Any combination of the above mechanisms which are mutually agreeable.

SEVEN: All rights, title, or interest the Town of Cumberland or Chebeague Transportation Company may have in the Blanchard lot, the Sewall right-of-way, and/or piers, floats, structures and improvements at Wharf Road shall be assigned to the Town of Yarmouth.

EIGHT: The Town of Cumberland and Chebeague Transportation Company shall agree to hold harmless, defend and indemnify the Town of Yarmouth against any claims, suits, damages, assessments, rents, awards, or governmental actions for any and all activities arising out of the use, development, activity, or occupancy of the subject premises under the subject proposal.

NINE: The Town of Yarmouth intends to withhold approval of the relocation subject to the issuance of permits, licenses, and other conditions of approval, including but not limited to applicable general and special conditions established by the Yarmouth Planning Board, Yarmouth Zoning Board of Appeals, and contract zoning conditions established by the Yarmouth Town Council.

TEN: The Town of Yarmouth reserves all rights to add or modify the prospective conditions of approval, and to withhold approval for any reason which the Yarmouth Town Council determines is in the best interests of the residents of the Town of Yarmouth, and nothing herein shall be construed to constitute any approval, promise, and commitment by the Town of Yarmouth.

For more information, call CTC at 207-846-3700 or send e-mail to: ctc@nlis.net.

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