YORK, Maine — Even as York Street resident Dan Raposa files an appeal of a Superior Court judge’s most recent ruling involving the abutting Gammon Lawn Care, he and his neighbors would like town residents to know they remain steadfast in their concerns about the business, and ask townspeople to walk a mile in their shoes for a moment.
“How can we not continue?” Raposa said. “We live here.”
They enumerate the many issues they’ve had particularly with the town but also with owner Josh Gammon over the past four years, which in their minds basically come down to allowing an “industrial” operation in a residential neighborhood. And the neighbors say they have to keep raising concerns.
“What is right and just?” Denis O’Connor of Glenn Lane said. “This whole thing has shown a bad view of our town government. It feels like someone is spitting on our face.”
“Even though some selectmen are sympathetic, and I think they want to do the right thing, they are getting a lot of pushback from different people,” Peter Dutton of Eureka Avenue said.
Most immediately, Raposa is appealing a July ruling by York County Superior Court Judge John O’Neil that Gammon’s business is a grandfathered use, substantially the same as when the property was owned by the late Peter Marcuri, who ran an excavation business there. A notice of appeal to the Maine Supreme Judicial Court was filed Aug. 5.
O’Neil’s ruling centers on the “operative decision” of the Board of Appeals in 2016 regarding the issue of use, Raposa said. Code Enforcement Officer Amber Harrison had determined the use was grandfathered, and Raposa appealed that determination to the Board of Appeals.
The board in a 3-2 decision July 27, 2016, approved the appeal, but in its written findings of fact approved the following month, it ruled Gammon’s business does not constitute a change of use but is an intensification of the same use. O’Neil said the board “expressed confusion” about the issue when it voted to grant the appeal, but the written findings were unambiguous and were the decision of record.
Raposa said his attorney will argue to the high court that O’Neil “failed to determine that July 27 was the operative decision. I’m confident that case law clearly states that Judge O’Neil isn’t accurate. You can’t massage the vote a month later,” he said.
Several neighbors point to this situation as emblematic of the problems with the town. “Have you ever seen anything like this in the past? A public vote is taken and a judge says they were confused when they voted and it was appropriate for them to change the language?” O’Connor said.
Robert Zeraschi of Sea Trumpet Lane said he’s watched as over the years residents have come before various town boards to describe a commercial operation that they feel is inappropriately sited for the area. He said he has been a commercial developer, and “if I went into a meeting and I had this many people show up, my lawyer would say, ‘Let’s pack up and go.’ The opposite happens here. I’ve never seen so many people stand up. In any other town, Mr. Gammon would be packing his bags.”
The neighbors said Gammon continues to intensify and expand uses on the property, to include multiple companies using the site to dump snow or to pick up salt or landscaping material. This activity that can occur at all times day and night, they said. Most recently, they said debris and tree stumps from the July 31 downburst are on the property.
“He’s cutting trees and bringing them in,” Dutton said. “You would think Board of Selectmen or town manager would help the neighbors out, because the reality is you don’t want this in any neighborhood in York.”
Raposa is also concerned Gammon continues to operate his business despite the fact he does not have enough property under the town’s zoning to do so. He has a purchase and sale agreement with neighbor Ron Peris and a land swap agreement with Marcuri’s widow, Diane, that will give him enough land. But Gammon’s attorney, Matt Howell, has said he cannot purchase the property from Peris until there are no more outstanding lawsuits against him, as banks will not loan him money.
Raposa said Peris had earlier sold two pieces of the property, including one in February, leaving a landlocked parcel he intends to sell to Gammon. Raposa questioned whether Peris should have filed for a subdivision because he sold off two parcels. Heather Ross, land use technician for the town, said in general, the subdivision requirement doesn’t kick in until a third parcel is sold.
Howell said he is “obviously disappointed” that the Raposas are appealing the O’Neil decision, but said, “I will continue to represent Gammon Law Care’s interests and fight for its right to operate a business from that property.”
O’Connor said he doesn’t have a problem with Gammon, per se, but with the town. “This is an example of a system that isn’t working,” he said.
Town Manager Steve Burns said he understands what the neighbors are saying and he appreciates the fact they don’t like the impact of the business on their neighborhood. But he said “you have to look at Gammon’s property rights as well. What is the correct balance? They don’t like it but the fact is he may have a right to be there. We have to wait until the court has the final say.”
Zoning rules in York, he said, assume that if someone has a business they are allowed to make an investment in his or her future. “The neighbors don’t want the business expanding over time, but what the courts have said is, yes, the business may be different and doing more, but it’s a natural succession of the earlier use.”