CAPE ELIZABETH — A business that hoped to open soon in the town center is running into zoning roadblocks.

Mike Friedland, who has a contract to buy the former Cumberland Farms gas station and convenience store property at 287 Ocean House Road, was denied an appeal by the Zoning Board of Appeals April 23.

Friedland had asked to forego a site plan review of the property that Code Enforcement Officer Ben McDougal said must be done before building permits can be granted for Friedland’s retail wood business, The Lumbery. The site review is required because there have been exterior changes to the property since the last site plan review.

Site plan review assures adequate provisions are made for traffic safety, emergency access, water supply, stormwater management, groundwater protection, and “fitting harmoniously into the fabric of the community,” according to the town zoning ordinance.

“I’m not going to change the building,” Friedland told the ZBA. “I was going to put solar panels on there, which I thought would be great, but if it triggers site plan review, then I won’t have solar panels. I was going to have courses there that I thought would enhance the community, but if having courses that helps the community triggers site plan review, I don’t need to have courses.”

The current site plan was originally approved in 1984 and last updated with an amendment in 1994 to include the addition of a canopy over the gas pumps.

In 2014, the canopies were removed with a demolition permit approved by McDougal. But the site plan has not been updated to reflect the physical change.

“The canopies don’t exist. They were lawfully removed,” Friedland’s attorney, Paul Bulger of Jewell and Bulger, said at the meeting. “The implication of the town code enforcement officer approving the demolition without amending the site plan concludes that it was (minor) change in his view.”

“I don’t think it was the town saying it was (minor),” board member Kevin Justh responded. “I think it was an oversight, and that happens.”

When Cumberland Farms removed the canopy in 2014 to comply with federal law and deal with an environmental hazard before selling the property, the company understood that it needed to apply for site plan review, but did not have an updated plan to submit, according to McDougal.

“It was an odd situation,” McDougal said in a phone interview April 29. “Everyone moving forward knows that whoever proposes something new here will need a site plan amendment for the canopies. That was an understood thing when I applied for the demolition permit.

“Everybody who has come in to look at that property was made aware that they would need a site plan review in order to start operating on that property.”

McDougal and Friedland first spoke about conducting a site plan review on the property in late January.

Site plan reviews can typically take three months and prices can vary depending on which company is hired and which studies are conducted, according to McDougal.

ZBA member Matthew Caton suggested that the requirement for site plan review might present a “prejudice to a potential buyer of the lot,” but worried about the implications of creating a precedent where a new buyer would not be responsible for site plan review.

“Two wrongs don’t make a right. Just because it wasn’t done before doesn’t mean it shouldn’t be done now,” Justh said.

The site has been vacant since 2014 and is now owned by Dr. Jin Hwang of Gentle Dental, who purchased the property in 2016. Hwang had intentions to develop the property for his dentistry business, but did not move forward with them.

Preceding the meeting, the board received 18 emails about Friedland’s proposal; 12 supported the proposal and six were opposed.

Former Town Councilor Sara Lennon wrote, “I think it’s important to enable small business owners, especially resident(s) of Cape, to create and open businesses. If we make the approval process too onerous and expensive, we will preclude the creative, interesting small shops and have nothing but multiplex medical offices from those with financial resources well beyond an entrepreneur with an interesting idea.”

Another resident, James Gaidos, told the board “This is an opportunity that should not be missed. … I encourage you to move this proposal forward as quickly as possible.”

But resident Shukria Wiar argued the proposal is for a new use and a new site plan. “I think this project could be good with the proper review and due process,” Wiar wrote.

Public comments at the meeting were similarly divided.

“It sounds like a good fit and an appropriate use of the space, so I’m just here to encourage you to support the project,” resident Paul Sideman said.

“Bringing a brand new application forward, this is not a (minor) change. This is brand new. This is not the approved plan going from conception to completion. … I ask the board to please support the code enforcement officer,” Victoria Volent said.

The vote on the appeal was split 3-3, but appeals are only approved if they receive a majority vote in favor.

Friedland, who also owns Willard Square Home Repair,  said he now plans to apply for a site plan amendment, which will update the site plan review to include the removal of the canopy.

He is also scheduled for a Planning Board workshop on Tuesday, May 7.

Mike Friedland

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