The Cape Elizabeth Town Council and The Lumbery will enter mediation to resolve a three-year dispute over zoning infractions that resulted in the town suing the business. The negotiations will be held during a council workshop open to the public.
The council voted 5-2 on Monday to keep its lawsuit against the Ocean House Road business in place but to have a professional mediator work with the town and store co-owner Mike Friedland to find a solution. Councilors Tim Reiniger and Susan Gillis were opposed because they want the town to drop the suit.
Reiniger
“I was impressed. It’s something I’ve been asking them to do for years now,” Friedland said Tuesday about the mediation plan. “For them to do it and be so open about it, I was just taken aback. I guess it’s not about what happened in the past, it’s what people do moving forward.”
The lumber and hardware store has been in and out of compliance with its site plan and the town’s zoning ordinances since 2020 because it stores and displays merchandise, such as picnic tables, flower boxes and bags of mulch, in its parking lot. To comply with the site plan, Friedland said, he needs to file for an amendment with the town Planning Board every time he wants to move an item from one part of his property to another. Doing so costs time in the form of the Planning Board process and money in the form of professional designs, representation at the board meetings and other fees, he said.
He says the town needs to review its ordinances and consider changing them.
The town, saying that the business had received numerous warnings that it was out of compliance, filed a lawsuit last fall against The Lumbery and Friedland in U.S. District Court in Portland seeking fines ranging from $100 to $5,000 for each day the ordinances have been violated. Court action on the complaint was delayed on Aug. 17 for four months.
Fellow business owners, customers and other residents have come to The Lumbery’s defense at recent council meetings, touting its usefulness to the community and questioning why their town is suing a local small business in the first place.
Reiniger proposed scrapping the lawsuit for the good of the town.
“It would be a better image for the town of Cape Elizabeth, which is full of wonderful people, to drop this,” Reiniger said. “Still work with them, but send a message that we want to be friendly to small businesses, as we are.”
Gillis agreed.
“We’ve already lost this case in the court of public opinion,” she said. “We look petty and we look like we’re against small business … I don’t think we need to have the boot of the lawsuit on (Friedland’s) neck” while mediation takes place.
“‘A boot on the neck?'” said Councilor Gretchen Noonan. “I certainly don’t want to feel like that’s what we’re doing, but there’s really no pressure anymore to work together – whether it’s coming into compliance or working out our ordinances – if there’s not a lawsuit.”
The four other councilors agreed with Noonan, arguing that dropping the suit would go against their duty as councilors to uphold the town’s laws and could set a dangerous precedent.
Caitlin Jordan
“If we just drop it, basically what we’re saying is he’s not in compliance and it’s OK,” said Councilor Caitlin Jordan, who proposed that lawyers for the two sides hire a mediator for negotiations in a public setting. “We need to find a solution, get everyone on the same page, come into compliance, and the lawsuit goes away because you’re not out of compliance anymore.”
The mediation workshop has not yet been scheduled. The two attorneys were scheduled to meet about the details Thursday after The Southern Forecaster’s print deadline.
Friedland told The Forecaster he hadn’t expected the town would drop the lawsuit and he was content with Monday’s outcome.
“In my wildest dreams they would have said, ‘no more lawsuit, no more lawyers, we’ll take it from here,'” he said. “I think they’re realizing that, by addressing the shortcoming in the ordinances as it pertains to my business, they’re also going to be serving people of Cape Elizabeth who have been frustrated.”
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