YORK — In a much-anticipated ruling, a York County Superior Court judge dismissed a lawsuit over a York Board of Appeals decision in the Gammon Lawn Care matter, in essence giving owner Josh Gammon a significant victory.
Justice John O’Neil sided with the town of York, a defendant in the case, which argued the BOA ruling is advisory only and does not have legally enforceable status.
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This is the second time in a week that rulings have favored Gammon; the BOA last week overturned a Planning Board decision on lot size requirements. The issue of lot size and the issue of grandfathered use have formed the two main pillars of the ongoing dispute between neighbors and Gammon.
At issue is whether Gammon’s use of his York Street property is essentially grandfathered from the time when the late Peter Marcuri ran an excavating business there. Neighbors Dan and Susan Raposa have long said the lawn care business is a different and more intense use. In March 2016, they asked Code Enforcement Officer Amber Harrison to investigate their concerns.
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In her written reply to the couple, according to court records, Harrison stated “the uses are consistent with the previous uses, and no violations are warranted at this time.” Harrison to this date has still not issued a notice of violation with regard to use of the property, the court records state. She did issue a notice of violation with regard to the lot size requirements, which formed the basis of last week’s BOA ruling.
The Raposas appealed Harrison’s determination on use to the BOA, which ultimately sided with them, according to the court decision. Gammon appealed to the Superior Court. Once the board’s written findings of fact were issued, the Raposas took issue with the language in the document, which they felt differed substantially from the verbal meeting record. Specifically, they filed an appeal challenging a written finding that the use was an “intensification rather than a change of use.” Both appeals were then consolidated.
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When the town, a defendant, moved to dismiss the case, Gammon joined the town’s position. Judge O’Neil in his order said he was guided by a 2001 case out of Waterboro that closely resembled the situation in York. In that case, a resident asked the town to initiate enforcement action against a gravel pit operator, which the town declined to do. The neighbor appealed the decision to the town’s Zoning Board of Appeals, which affirmed the town’s decision. That was appealed to Superior Court, which overturned the ZBA ruling.
However, when the state Supreme Judicial Court was asked to weigh in on the matter, it overturned the Superior Court ruling, stating only the town in its official capacity has the authority to take action, and the appeals board’s role was only advisory. Therefore, the court had no standing to hear an appeal of its decision.
“Only notices of violation and enforcement orders are reviewable (by the court). Because no notice of violation or enforcement order has been issued and the board only ruled on the failure to find a violation, its decision remains advisory and the court lacks subject matter to review it.”
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If the Board of Selectmen at some point were to take legal action against Gammon, that action would have standing in the courts. By the same token, if Harrison were to issue a notice of violation regarding use, that too could be appealed to the BOA and ultimately to the courts.
The Raposas now have 45 days to decide whether or not to appeal.
Gammon’s attorney Matt Howell said he was “ecstatic” over the ruling. “I’m happy for Josh,” he said. “I got into this profession because I enjoy helping people solve problems. This has been a problem for a number of years.” He said Gammon will redouble his efforts to work with the neighbors in the future.
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