After more than an hour of public comment and a forty-minute Executive Session, the Council returned with a draft motion directing the town lawyer to pursue a “consent decree” with the business.
A “consent decree” is essentially a “settlement agreement” that is “approved by the court.” According the Cornell Law School, a consent agreement is commonly used in situation such as this wherein the government files a lawsuit against a person or company.
Several months ago, the Town of Cape Elizabeth filed a lawsuit against Mike Friedland and his business, the Lumbery, alleging noncompliance with the town’s zoning and sign ordinances.
The town accused Friedland of “encroaching well beyond their approved site plan by storing several pallets of firewood, picnic tables, stacks of lumber, and other items in the front of [the Lumbery.]”
Although the approved site plan for the Lumbery allows for “minimal outside storage of materials in areas defined in the site plan,” the town argues that Friedland’s displays do not fall under these criteria.
Cape Elizabeth also accuses Friedland of “placing a sign in the front of [the Lumbery] without submitting the information necessary for a complete sign permit application.”
Friedland, on the other hand, argued that he has attempted to comply with the town’s regulations, spending $165,000 over the past three years in order to bring his property into compliance.
Friedland has also suggested that he believes the displays in question fall well within his purview as a business- and property-owner.
After word of the lawsuit – which had initially been filed in late 2022 – started to spread throughout the town, a petition pressuring the Council to drop the lawsuit against the Lumbery began to circulate.
As of July 21, the petition has received more than 1,200 signatures from Cape Elizabeth residents, representing more than 10% of Cape Elizabeth’s population.
Public Comment Period at the July 17th Town Council Meeting
During the Town Council meeting Monday, discussion of the Lumbery lawsuit was front and center. The Council scheduled a public comment period ahead of a planned Executive Session during which they were to receive an update on the lawsuit from the town lawyer.
Friedland opened the public comment period by reading an excerpt from the town’s Comprehensive Plan that acknowledges how “many of the properties in the town center are privately owned” and consequently, the town “cannot dictate the disposition of private property that otherwise complies with town regulations.”
“Based upon the vision statement set forth in the Comprehensive Plan that purports to promote the vibrant town center, and based upon the statement that I just read acknowledging the importance of the independence of private property owners that otherwise comply with town regulations, I am absolutely stumped as to the past and continued actions of this Planning Department,” Friedland said. “On one hand, you have what should be going on, and on the other hand, you have what is actually going on.”
“The role of the Planning Board should not be to approve or deny the practical placement of outdoor displays on a recurring basis and it should not weigh in on a class visit,” Friedland said. “The scope of the Planning Board authority should not include dictating the day to day operations of a retail establishment.”
Friedland’s comments were followed by cheers and a round of applause. The Town Council Chair was then prompted to remind those in attendance that such displays of approval needed to be avoided during the public comment period.
19-year Cape Elizabeth resident Kate Stewart also contributed to the discussion.
“I view this one, as a resident, as pretty easy. I’ve got almost 1,200 signatures from people who have walked out by now, and couldn’t be here, and who really, really love this business, feel like we deserve it,” Stewart said. “Based on what Mike just said and what I understand, this is pretty easy. Amend the site plan conditions, tweak a few things to make it easy and amenable for a business such as this to operate.”
“It’s not that bad,” she said. “We do not need to have a lawsuit against him with our tax money.”
“I’ve minded my business for 19 years now, and raised two kids, and have a wonderful life here, but i really do need to stand up and say that we, and 1,200 other people, and everyone I talk to loves this place. They really add a lot of value, and I do encourage you to go by there. It’s a great place,” Stewart said.
Next, the owner of Cape Integrative Health – a business located nearby to the Lumbery – offered comment.
“I want to comment on this both as the immediate neighbor and as a business owner,” he said.
“This issue resonates really powerfully with me because about two years ago, as part of our development at 7 Scott Dyer Road, the town planner tried to put an illegal condition of approval on our submission at the eleventh hour,” he recounted. “After pointing roughly a $100,000 fire hose at it, we were able to move forward and construct 7 Scott Dyer.”
“It sounds like we have almost a tenth of the town easily in support of this with minimal effort. If you need more evidence than that, I don’t think you’re going to find 1,200 people that want the Lumbery to go away,” he said. “But that will be what happens if these types of actions are allowed to continue.”
A Cape Elizabeth resident then asked the Council: “This is a nice community, why are we having this?”
“We have enough adversity in our world today that we need to have this? Can’t this be worked out morally, ethically, and efficiently? And I ask you, and I ask the people from the Lumbery, to work together to try to solve this problem,” he continued.
John Kane, a Cape Elizabeth resident who has known Friedland for 15 years, then got up to offer comment.
“Lumbery is good for business. Lumbery is good for the environment. It’s good for Maine, and its good for Cape Elizabeth,” Kane said. “And I’m asking that you resolve this in the way that I was led to believe that Mainers resolve things – without lawyers, without lawsuits, face to face.”
“My business relies on his business,” Kevin Barry, a Cape Elizabeth-based contractor, said. “And I use his products to fix homes throughout this entire community.”
“This is just despicable what the town is doing – wasting money over arbitrary things. We have vacant property next door and a brand new building that nobody wants to occupy. The bank sat empty up on the corner for years. His building sat empty for years,” Barry said. “This town is doing nothing to attract small businesses.”
“We don’t have a public safety issue. We don’t have a public nuisance issue from a noise or excess light complaint. There’s nothing there,” Barry said. “I don’t know why we’ve gone down this path, and its an embarrassment.”
At this point, the customary 15-minute public comment period expired. The Councilors, however, voted to extend the allotted time.
Following this extension, fourteen more residents came forward in support of the Lumbery. Many of the commenters suggested that the town’s current regulatory climate is decidedly anti-small-business. Others stated their belief that filing a lawsuit was an unnecessary and inappropriate response to the town’s disagreement with Friedland.
The Town Council Takes Action
After more than an hour of public comment, the Town Council adjourned the public portion of the meeting and entered into Executive Session. Councilors then reconvened about after a roughly forty-minute meeting wherein they met with the town lawyer to discuss the lawsuit.
Upon their return, Chair Jeremy Gabrielson presented a draft motion in which the Council directed the town attorney to pursue a “consent decree” to “settle the enforcement action with the Lumbery to bring the property into compliance.”
According to the motion, if “an agreement” can be reached with the Lumbery, the Council “will not seek any fines or fees.”
Furthermore, “in the event that the site plan amendments require ordinance amendments,” the Council will “direct the town attorney to provide draft ordinance amendments for [the Council’s] consideration.”
The motion was seconded by Councilor Gretchen Noonan. The Council then voted unanimously in favor of the motion.
Statements from the Involved Parties
“That was freaking awesome,” Friedland told the Maine Wire.
“It seemed like the whole Town filled the Council chambers and stuck around for 3+ hours on a steamy night to show support for the Lumbery and show frustration that this was actually happening,” Friedland said.
“Everyone was wondering how it got to this point,” he said. “Where were the checks and balances that should have prevented the Town from filing a 4.5 million dollar lawsuit against a business that has done nothing but good for the community?”
“This is the opposite course that people want. Residents want to support small businesses, residents want a vibrant town center and residents want a governing body that adjusts, at times, to the needs of businesses in order to achieve shared goals,” Friedland said.
Friedland also spoke to his thoughts on the Town Council’s motion to pursue a consent decree.
“Everyone keeps telling me it’s a good thing,” he said. “But I still have a 4.5 million dollar lawsuit filed against myself personally as well as the business and I still have to keep shelling out money for lawyers fees when I can barely make payroll.”
“Opening the door to discussions and potentially not pursuing a baseless lawsuit is good, but what’s even better is pursuing good action,” Friedland said. “Dropping the lawsuit, proclaiming support for the Lumbery and all small businesses, investigating the steps that led to the lawsuit and making changes based upon input from businesses to avoid such situations in the future.”
“I would like this whole thing to go away so I can focus my time, money on resources on actually running a business that is considered to be an asset to this community,” Friedland said.
The Cape Elizabeth Town Council did not immediately respond to a request for comment.
Watch the Full Cape Elizabeth Town Council Meeting from July 17, 2023
Discussion of the Lumbery lawsuit can be heard from approximately 2 hours, 51 minutes through 3 hours, 55 minutes.
The Council reconvenes following their Executive Session around 4 hours, 37 minutes, and their update on the Lumbery lawsuit runs until about 4 hours, 44 minutes.
Full Text of the Draft Motion Concerning the Lumbery Lawsuit
The Council moves to direct the town attorney to pursue a consent decree to settle the enforcement action with the Lumbery to bring the property into compliance. In the event that the site plan amendments require ordinance amendments, we direct the town attorney to provide draft ordinance amendments for our consideration. If we are able to reach an agreement with the Lumbery, we will not seek any fines or fees. We ask that the town attorney report back on progress in thirty days.
Read the Original Lawsuit
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