Neighbors of a vacant oceanfront lot in Cape Elizabeth want to prevent development of the property in the future, though the developer who held building permits for the lot voluntarily abandoned them in August.

Cape Elizabeth’s Zoning Board of Appeals Tuesday dismissed as moot an appeal by neighbors of building permits issued to developer Adam Mack, because the permits had been withdrawn.

The vacant lot at 24 Reef Road is directly on the ocean and attached to the rocky spit of land known as Trundy Point. Code Enforcement Officer Bruce Smith issued building permits for the lot to Mack’s mother’s company, Pya Chang LLC, in February.

The abutting property owners – John and Audrey Fatula of 27 Reef Road and Paul Coulombe of 21 Reef Road – filed a formal appeal with the Zoning Board of Appeals in March claiming the permits had been improperly granted.

The issue first came to the board in April, but had been tabled that month by the Fatulas and Coulombe because they hoped to negotiate a decision independently. The issue has been on the board’s agenda every month since then, but was repeatedly tabled at the neighbors’ request.

On Tuesday night the issue was on the agenda again, though Chairman Jay Chatmas was “a bit confused” about why, because the developer had voluntarily abandoned the permits in question in August.

Chatmas said it was “not the business of the board to make preemptive decisions on property” when there is not an outstanding permit or controversy.

Richard Bryant, attorney for the neighbors, said the board could act without the permits still being held by the developer, because the lot is unbuildable and because an illegal land swap made it appear buildable.

At the same time his clients made the appeal in March they also requested a determination by the Code Enforcement Officer Bruce Smith as to the boundaries of the shoreline, coastal wetlands and sand dunes. To date, those determinations have not been made.

Bryant said it was the factual basis of those geographical areas that determined the legitimacy of the issued permits, and was one of the reasons for the appeal. The neighbors believe the lot will be deemed unbuildable when the boundaries are formally measured.

According to Smith and the board those determinations would be forthcoming now that the negotiations between the Mack and the neighbors were over.

Development of the lot has been attempted before. After Pya Chang and her husband Alvin Mack purchased the property in 1980 they applied for building permits from the town, which refused the application. Chang and her husband appealed the decision all the way to the Maine Supreme Court, which in 1983 upheld the town’s refusal.

In the fall of 2004 circumstances changed when Adam Mack, Chang’s son, bought the adjacent one-home lot at 26 Reef Road. After reconfiguring the lot lines to allow for a building envelope on the vacant lot that would be large enough to accommodate a structure while still maintaining the setback requirements, Chang applied for permission to build on the rearranged lot.

Bryant also said the land swap violated the town ordinance governing non-conforming lots, because it made the lot with the existing house smaller, which is not allowed.

Chatmas disagreed, saying the lot size was actually increased after the conveyance. Smith said later that he agreed with Chatmas and thinks the debate on the size of the lot may relate not to the land swap but to the exact location of the property’s border with the ocean.

Michael Hill, the town’s attorney, said the board needs a controversy to hear an appeal, “and there’s no controversy at this time.” He said the appeal had been made moot by the developer’s independent decision to abandon the permits.

The attorney representing Pya Chang, Scott Anderson, agreed. He said since the permits had been withdrawn and the proposed development would not proceed, “the abutters no longer have standing to pursue the appeal and the board should dismiss the appeal as it lacks jurisdiction.”

Hill said the request by the neighbors for Smith to determine wetland boundaries could be addressed in the future. Hill also told the board he did not believe there were any limitations on how far into the future the board could hear an appeal on the issue of the property swap that Bryant called a violation of ordinance.

Bryant said he wanted to put on the record his clients’ right to future appeal if the developer applied for building permits again.