The Cape Elizabeth Town Council voted unanimously to dismiss without prejudice the lawsuit filed more than a year ago against Lumbery — a small business located in the center of town on Route 77 that sells locally sourced wood, garden beds, and tools — and it’s part-owner Mike Friedland.
The Council’s decision to dismiss the lawsuit without prejudice means that they are free to bring this same issue to court in the future should their attempts to resolve disputes with Lumbery outside of the legal system be unsuccessful.
Over the summer, the Council voted to direct the town attorney to pursue a court-approved settlement with Lumbery, but Friedland and other concerned residents wanted to see the lawsuit dropped outright.
The lawsuit — which was filed last October — alleged that Lumbery was in non-compliance with the town’s zoning and sign ordinances.
The Town accused Friedland and The Lumbery 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 business].”
Although the approved site plan for Lumbery allows for “minimal outside storage of materials in areas defined in the site plan,” the Town argued that Friedland’s displays do not fall under these criteria.
Cape Elizabeth also accused Friedland of “placing a sign in the front of [Lumbery] without submitting the information necessary for a complete sign permit application.”
At the request of Councilor Tim Reiniger, consideration of the Lumbery lawsuit was once again placed on the agenda for this week’s Town Council meeting.
The only person to speak during the public comment period this time was Friedland.
Instead of focusing his remarks on the Council’s impending decision to drop the lawsuit, Friedland honed in on his experiences over the past four-plus years with members of the town staff, explaining that his complaints have gone unheard.
“For over four years,” Friedland said, “I’ve been very vocal about my displeasure with certain members of the town staff, including some of the volunteers. And for four-plus years, I’ve been told the same thing, that they’re just doing their jobs.”
“Obviously their jobs are to enforce the rules, but the jobs also include interacting with customers and listening to customers — and when I say customers, I mean businesses and residents,” Friedland continued. “In my experience with this town, my experience has not mattered at all.”
“It’s like I was speaking into the wind,” Friedland said.
“I’ve been shouting that I need help, and it wasn’t until we got a 1,400-person petition, that we filled this room,” Friedland said. “And then the solution was — let’s put the onus on me to try and come up with a new recipe that will work.”
“I’ve asked for you guys to drop the lawsuit multiple times. I’m not here to ask that. I’m here to make suggestions,” Friedland said. “I suggest you drop the lawsuit because I think that would be great for the town. I suggest I get reimbursed for legal fees because it should not have come to this.”
“I suggest there be an internal review to figure out what went wrong, who was responsible, and how can we avoid this in the future,” he said. “And I suggest coming up with a new culture where if someone says ‘hey this is not working,’ that they get listened to.”
“I just can’t believe there is still a lawsuit,” he said.
Following Friedland’s comments to the Council, Reiniger introduced a motion to dismiss the lawsuit that was seconded by Councilor Susan Gillis.
In advance of a vote, the town attorney offered some clarifying information about the current state of the lawsuit, as well as what the difference would be between a dismissal with and without prejudice.
Reiniger then proposed a motion to dismiss the lawsuit without prejudice that the Council unanimously approved.
“I am absolutely relieved that the Cape Elizabeth Town Council voted to dismiss the lawsuit,” Friedland told the Maine Wire. “And I am especially thankful to Councilor Tim Reineger who repeatedly pressed the issue.”
“But at the same time I am shocked by the absolute lack of introspection on the part of the Town,” he said.
“I told the Councilors that I have been telling the Town staff, most notably the Town Planner Maureen O’Meara, for over four years that the rules as they are are hurting my business and that I could not comply,” Friedland said.
“I have been in tears in front of the Town Manager begging for assistance. I have been coerced by the Planning Board to purchase and install a streetlight for the Town as a condition of approval. I have been threatened repeatedly with legal action by the Code Enforcement Officer,” Friedland said. “I have been forced to disprove an exaggerated report from the Town engineer costing $25,000. I have been threatened with small claims court and I have spent over $80,000 in an effort to work within the broken system.”
“But time and again the Town staff chose to discount my words and ignore my pleas for help and ultimately decided to sue us instead of working with us to come up with a practical solution,” Friedland said.
“I am tired of shouting into the wind and I am emotionally, financially and mentally drained from this lawsuit and from doing business in Cape,” Friedland concluded. “I hope those responsible are held accountable and I hope in the future the Town prioritizes the words of customers over the assurances of the staff.”