A new 30-seat brick-oven pizzeria could open as soon as this summer in one of the existing buildings on the Cape Co-op property on Ocean House Road, but only if the property owner and the tenant who leases the building can reach an agreement.

The Cape Elizabeth Planning Board unanimously approved the site plan for the proposed restaurant, the Summer Oven, at 541 Ocean House Road, with conditions during a May 19 hearing.

Property owner Nick Tammaro told the Planning Board that he was in the process of negotiating a buyout with Something’s Fishy owner, Sandra Jones, to end her lease early at 541 Ocean House Road so he could begin construction. Jones’ lease is not set to expire until March 2016.

“My right to quiet enjoyment is in effect until then,” Jones said during the meeting. “I was never informed or given any notice that the proposed restaurant would be opening in my space this summer. No action should be taken at this time to enable Summer Oven … to disregard my rights,” Jones told the Planning Board.

According to Town Planner Maureen O’Meara, since the meeting Jones has hired an attorney to defend Tammaro’s plan. In addition to her Portland location, which she has been running for 34 years, Jones has operated her store in Cape Elizabeth for the past two years.

Jones told the Planning Board that she first learned of the proposal on May 6 during a visit to Town Hall.

“I discovered that a proposal was submitted on April 30 to the town Planning Board showing the intended use of my leased space at 541 Ocean House (Road) for the construction and operation of a restaurant called Summer Oven,” Jones said. “It is scheduled to open this summer. There remain several issues that need to be resolved. The Summer Oven/Tammaro proposal is premature.”

Tammaro disagreed, saying he notified all his tenants of the proposal.

“We are in the process of negotiating a buyout so (Sandra Jones) feels comfortable and everybody’s happy,” he said. “We will follow the law to do that correctly.”

He added, “We don’t want to displace anybody. We want somebody to leave willingly. We wouldn’t be here tonight if we didn’t have the feeling that we were close to a buyout agreement. We wouldn’t be pushing as hard as we are if we didn’t think we could make it happen with our current tenants,” said Tammaro.

Lauren Weliver, an attorney with Portland law firm Perkins Thompson, who attended the May 19 meeting on behalf of Rudy’s of the Cape, which reopened at 517 Ocean House Road in March, said she wanted to ensure the Summer Oven was held to the same design standards as Rudy’s.

But according to Weliver, the Summer Oven application was not complete for several reasons, including the fact it did not meet many of the business zone’s key landscaping and design requirements, and because there is “a lease dispute” between the property owner and a tenant.

Jones did not respond to requests for comment about her decision to hire an attorney by the Current’s Tuesday deadline. Tammaro, speaking on behalf of his co-applicants Jennifer Feeney and Sheldon Goldman, also declined to provide the Current with any further details on the project until mid-June.

Before the board can issue a building permit for the project, the applicants must make a few revisions to their plan, such as providing the board with a letter from the Portland Water District indicating the site has an adequate water supply, and planting trees consistent with town design standards, among other items, O’Meara said.

The buildings are located in the Business A district and are considered “village retail.” The applicants are proposing to turn a portion of an existing 2,713 square foot retail building into a 30-seat restaurant serving flatbread-style pizza.

In addition to two greenhouses, four businesses are located on the Cape Co-op property, including Tammaro’s landscaping business, Pet Positive, Inc., Off the Wall Antiques and Something’s Fishy. At the May 19 meeting project engineer Johann Buisman of Northeast Civil Solutions in Scarborough, said while the focus of the project is to open the Summer Oven in the Something’s Fishy storefront, other concerns, such as inadequate parking, will also be addressed.

As part of the project, one of the greenhouses on the property will be removed, and some of the pavement in front of the proposed restaurant will be turned into lawn space, where the plan is to add an outdoor patio.

In addition, one of the two existing entrances to the property will be closed. The one that remains intact will be shifted to the right to improve access to the site, and a new driveway will be added in front of Tammaro’s landscaping business. Doing so will separate the landscaping side of the property with the retail side, providing for better traffic flow, Buisman said.

“This site right now has a very commercial feel to it,” he told town planners last week. “It’s in an area where a lot of people see the site. We feel what we’re doing with the site – while we are not altering any new structures – we are vastly improving what is there now.”

Planning Board Chairman Peter Curry said he was “not thrilled about the uncertainty” of the outcome of the lease agreement between Tammaro and Jones.

“The lease issue is beyond our power to do anything about or anything with,” added Planning Board Vice Chairwoman Carol Anne Jordan.

“I am confident we will be able to make an agreement with Sandy Jones to make her feel comfortable before we proceed,” Tammaro said.

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