The owner of Rudy’s on the Cape sued the town, arguing the Planning Board did not require the same “rigorous” review.

As the result of a recent court ruling, the Cape Elizabeth Planning Board must revisit key aspects of the site plan it approved more than a year ago for the redevelopment of what’s known as the Cape Co-op property on Ocean House Road.

After the Planning Board gave property owner Nick Tammaro the go-ahead to make improvements to the site last May, Paul Woods, the owner of the nearby Rudy’s of the Cape restaurant, sued the town, arguing the board had not followed proper procedure.

Peggy McGehee, Woods’ attorney, said the Cape Co-op  project was not subjected to the same “rigorous review process” or held to the same “really high standards” for redevelopment as was Rudy’s.

“Unlike the year-long process for Rudy’s, the Planning Board reviewed and approved (Tammaro’s project) in one night,” McGehee said. “This (project), which is only a few doors down, is not of the same quality and it was a rushed application.”

McGehee said the site plan the board approved was not in compliance with town ordinances and development requirements relating to at least a dozen standards.

Now, the Cumberland County Superior Court has remanded the case back to the Cape Elizabeth Planning Board on three specific issues dealing with lighting, landscaping and stormwater management.

Town Planner Maureen O’Meara said Tammaro has not yet made any of the proposed improvements to his property, including plans to turn a retail space into a flatbread pizzeria with seating for 30.

The Planning Board was scheduled to meet on Tuesday, after the Current’s print deadline. Prior to the meeting, O’Meara said the board is now required to review the application submitted by Tammaro last year and “articulate a little better” its position on the issues named by the court and “be a little clearer about the basis of its decision.”

McGehee’s position is that the board must do more than that. She said it must prove that there is evidence on the record to support its decision to approve Tammaro’s site plan, and argued that such evidence does not exist.

In a letter to town attorney John Wall, McGehee also argued that the Planning Board did not have the right to waive the requirements for a sufficient lighting, landscaping and stormwater plan, as it did last year when reviewing Tammaro’s project.

What her client wants, she added, is for the board to reject the site plan it approved last year and require Tammaro to re-submit his redevelopment plans to fully articulate how he would meet the requirements of the town’s ordinances.

Tammaro did not respond to requests for comment prior to the Current’s deadline.

“We feel this was a substandard application and our goal is for a better project” that complies with town standards,” McGehee said.

For instance, she said, a proposal to plant a tree every 75 feet does not meet Cape’s buffering rules.

McGehee calls Rudy’s a “real attribute to the community” now. But the plan to rebuild the restaurant was the subject of much controversy in town a few years ago, with many objecting to its metal roof and other project details, saying it didn’t fit in with Cape’s traditional New England architecture.

“What my client wants to see (now) is a new site plan for a better project,” McGehee said this week. “My hope is that the board will agree and (decide to) follow it’s own review standards.”

The court has given the Planning Board “the chance to decide (the issue) correctly,” she said.

McGehee salso aid that depending on what happens this week, Rudy’s could go back to the court and argue the Planning Board’s findings “are legally defective.”

Tammaro, who has owned and operated Tammaro Landscaping since the age of 16, has now diversified his holdings to include the entire Cape Co-op property, as well as an off-site farm.

On May 19, 2015, the Planning Board unanimously approved his proposed plans for the Co-op site, which contains several greenhouses and retail storefronts. The site plan was approved even though Tammaro was also dealing with a lease dispute regarding one of the storefronts.

At the Planning Board meeting last year, Tammaro said his plans for the property included removing one of the greenhouses and turning a paved area in front of the proposed pizzeria into lawn space with an outdoor patio.

Overall, his representative before the board said, “We are vastly improving what is there now.”

O’Meara said this week that the Superior Court found that most of Rudy’s claims against the town “were without merit” and that the record of Tammaro’s site plan approval provides “more than adequate information.”

Also on the Planning Board’s agenda Tuesday is site plan review for Wentworth Lodge, the Sprague Corp.’s new outdoor event facility.

Plans by Nick Tammaro, owner of Tammaro’s Landscaping, to redevelop the Cape Co-op property on Ocean House Road are under fire by the owners of the nearby Rudy’s on the Cape.

While it may be a well-established business in town now, the approval process for the new Rudy’s on the Cape restaurant was a controversial one several years ago.

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