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 — Daniel and Susan Raposa have filed an appeal to the Maine Supreme Judicial Court regarding ongoing issues with Joshua Gammon and Gammon Lawn Care. But the town and Gammon, both defendants, say the appeal should be denied.

The state’s highest court has been asked to rule on a Superior Court decision issued last January, in which it dismissed a lawsuit regarding the grandfathered use of the 650 York St. property.

Prior to 2012, the late Peter Marcuri ran an excavation business there. Gammon started using the property in 2012 and bought it in 2014. Marcuri is also named as a defendant in the Raposa’s most recent appeal.

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At the root of the issue is a disagreement over whether Gammon’s lawn care and landscaping business at the site is a continuation of the business Marcuri ran there — and thus is grandfathered as a legal use — or if it represents a significant change in activity.

If it’s to be considered a change of use, it would reopen scrutiny into whether Gammon has the space required to work there: The town’s minimum lot size for a nonresidential use in that shoreland zone is 60,000 square feet, and the property was just less than 51,000 square feet when he acquired it.

Neighbors, including the Raposas, have said an increase in activity at the property has disrupted their lives.

In a January ruling, York County Superior Court Justice John O’Neil sided with the town, which argued a Board of Appeals ruling on grandfathered use is advisory only, does not have legally enforceable status and therefore can’t be appealed to the courts.

The matter revolves around an email Code Enforcement Officer Amber Harrison sent to the Raposas in April 2016, after they asked her to investigate whether Gammon’s use of the property was grandfathered or whether a notice of violation should be ordered because his use of the land was different and more intense than Marcuri’s. She wrote that Gammon’s uses “are consistent with the previous uses and no violations are warranted.”

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The Raposas filed an appeal of her determination to the appeals board, as she told them they were welcomed to do. The board voted that night that the Raposas’ appeal should be approved, leading Gammon to appeal to the Superior Court. However, in the BOA’s subsequent written findings of fact, it stated Gammon’s business was not a change in use — in apparent contradiction of its earlier vote. The Raposas appealed the findings of fact.

The two cases were joined, and in January of this year, Justice O’Neil basically said there was no basis for a court appeal of either claim. 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. A subsequent Zoning Board of Appeals decision ultimately ended up before the supreme judicial court, which ruled the decision was only advisory.

“Only notices of violation and enforcement order 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…the court lacks subject matter to review it,” O’Neil’s ruling stated.

The Raposas asked the Superior Court to reconsider its decision, but the request was denied in May. As a result, they filed the law court appeal.

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In their appeal, the Raposas argue that appeals of town decisions are a cornerstone of appropriate legal challenges. “All property owners must be provided with a venue and the ability…to challenge the CEO when he or she makes a discretionary determination that results in a diminishment of the value and quiet enjoyment of their property.

“Denying the right to appeal any CEO determination is inconsistent with the broad legislative mandate that ‘any action or failure to act’ by the CEO may be appealed to a zoning board of appeals and then to the Superior Court,” they state in their SJC brief.

They cite several court cases to back up their contention that the courts in fact did have jurisdiction to hear an appeal in this case. They also cite the town’s zoning ordinance, which states the BOA “shall hear and decide appeals from any order, requirement, decision or determination.”

The town and Gammon, who joined with the town in the O’Neil case and is doing so with the SJC appeal, both argue the Waterboro case holds precedence and is nearly identical to the facts of the York case.

In the matter of use, Gammon’s attorney Matthew Howell stated that when Harrison wrote that initial email to the Raposas in 2016, she relied in pertinent part on a written statement by Peter Marcuri.

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The former owner said his business “plowed and removed snow, stored snow from off-site locations and delivered loan, gravel, mulch, hay, brick and other stones.” These are the kinds of activities in which Gammon engages, and so his business was properly grandfathered.

The town and Gammon stated in their briefs that O’Neil correctly ruled it was the Board of Selectmen that had authority to rule on whether or not Harrison’s opinion was correct — because she had not taken any formal action, like issuing a notice of violation, that could be appealed to court.

It is expected to take months before the Supreme Judicial Court rules on this matter.