The Cape Elizabeth Town Council voted unanimously Monday to dismiss the town’s controversial lawsuit against The Lumbery, a business in the town center that has been in and out of compliance with zoning regulations over the past four years.

The council dismissed the suit “without prejudice,” which means they can reinstate it in the future if they see fit.

“I suggest you drop the lawsuit because it would be great for the town,” The Lumbery co-owner Mike Friedland told the council before the vote.

The council voted in September to send the dispute to mediation.

“My hope is that the town and The Lumbery would continue to work together to bring the property into compliance,” Town Council Chairman Jeremy Gabrielson told The Forecaster Wednesday.

The hardware and lumber store is out of compliance with zoning laws because it stores and moves products, such as mulch and flower boxes, around its parking lot. Each time they move products they are required, under town regulations, to file a site plan amendment, which Friedland said is financially infeasible due to the costs for consultants and designs needed for each amendment application.


Friedland said he knows he has “beaten this to death” but he has been “shouting that I need help” for years, and it wasn’t until a large group of residents turned out to denounce the lawsuit against The Lumbery at a council meeting this summer that the issue gained attention.

The lawsuit sparked criticism from residents and other business owners that is difficult to work with the town and within some of its zoning ordinances.

The council’s main concern with dismissing the lawsuit during previous requests to do so was that allowing The Lumbery to be out of compliance could set a dangerous precedent. Due to the “without prejudice” clause, councilors were supportive of the measure.

“My heart breaks for you; I can’t imagine the anguish you’re going through,” said Councilor Penny Jordan.

She supported dropping the suit with the caveat it could be reinstated as a “way we can take pressure off – and at the same time recognize if certain things don’t happen we can go back.”

The Ordinance Committee is set to work on zoning amendments later this month, according to Jordan, who is the chairwoman of the committee, and those amendments could help The Lumbery come into compliance and thwart future issues.

Friedland also asked the council Monday to pay his legal fees.

“I suggest I get reimbursed for the legal fees because it should not have come to this,” he said. “I suggest there be an internal review of what went wrong, who is responsible, and how we could avoid this in the future.”

Comments are not available on this story.