Residential neighbors of Gammon Landscaping, located on York Street in York Harbor, say the business is way too intensive for the area and differs from an excavating business that had operated on the site. Credit: Deborah McDermott | The York Weekly

YORK, Maine — The neighbors of Gammon Lawn Care on York Street say they are not letting up in their effort to fight for their rights as abutting property owners to a commercial business. Most recently, abutter Dan Raposa plans to go before the Maine Supreme Judicial Court to appeal a lower court decision in this back-and-forth saga.

But the group is also continuing to concentrate its efforts on the Board of Selectmen, who it said has not fulfilled its responsibility in dealing with what they see as incorrect decisions of both town staff and boards.

“I’m not shutting up and I’m not going away,” Raposa said. “I live in this town. I’m proud to be a citizen of York and the right of a citizen is to do what our group is doing.”

Earlier this month, Raposa filed a “notice of appeal” with the Supreme Judicial Court, of a York County Superior Court decision rendered last January. The issue in that case involved use of the property — whether the lawn care business was a grandfathered continuation of the use started when Peter Marcuri and his father ran an excavation business on the property in the past.

Superior Court Justice John O’Neil argued a Board of Appeals decision on this matter was advisory only, and did not have legally enforceable status. He ruled the town, through its Board of Selectmen, has authority to take action, and the court therefore had no standing to hear an appeal. He dismissed the case.

Although no documents have yet been filed with the SJC, Raposa said he is basing his appeal on the fact the underlying issue of use was not decided by O’Neil, and that issue must be addressed. Gammon’s attorney Matt Howell said he doesn’t think Raposa’s case will be successful.

“The appeal’s likelihood of success is very remote,” he said. “The law is pretty clear on this issue, and Justice O’Neil issued a very comprehensive and well-reasoned decision. I simply don’t see the Law Court (Supreme Court) reversing the decision.”

There are a couple of other issues that are distressing the neighbors as well, said Raposa. Another underlying issue has to do with the fact Gammon has not had enough land to operate a nonconforming use in a shoreland zone. Last year, he agreed to purchase property from abutters Ron and Susan Peris and swap land with abutter Diane Marcuri in order to comply with that town zoning requirement.

The BOA in January reversed an earlier Planning Board decision and ruled the resulting lot was legal. As a result, Code Enforcement Officer Amber Harrison lifted a notice of violation she had earlier imposed against Gammon.

First of all, said Raposa, Gammon has to date still not purchased the land from the Perises, although under terms of the BOA decision he had to do so within 120 days — which comes due this week. So lifting a notice of violation on a lot that doesn’t yet exist is “an absurdity” on Harrison’s part. Gammon is still operating on his original and too-small property, Raposa said.

Howell agreed Gammon has not finalized the sale of the Peris land, but said the underlying issue of the validity of the lot has been appealed to the Superior Court in a separate case and is pending.

“No bank and certainly no title company is willing to finalize the transfer while a court case is pending,” he said. “Josh has gotten the green light for funding, but we haven’t been able to do it. All this is not Ron’s fault, so Josh has already made a payment on what he owes Ron.”

When Harrison lifted the notice of appeal, the neighbors appealed that action to the BOA, which was supposed to hear the appeal in early May. But town attorney Mary Costigan said Harrison’s action was not a “decision” under town ordinance. As a result, the night the matter was supposed to be heard, the BOA took no action.

Raposa said he felt the neighbors’ due process rights were violated. They were unable to lay out their arguments before an appellant body, which they said is their right as citizens. And they dispute that Harrison’s action was not a decision. “It was a flagrant miscarriage of justice. We as citizens have a right to bring any action to the Board of Appeals,” Raposa said.

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