Two Reef Road residents have appealed to block the proposed construction of a house across the street from them, on a vacant lot that includes the spit of rocky ledge known as Trundy Point.

Pya Chang LLC, the owner of 24 Reef Road, the vacant lot, received a permit to build a home on the property from Cape Elizabeth Code Enforcement Officer Bruce Smith Feb. 23 – a decision the neighbors, John and Audrey Fatula of 27 Reef Road and Paul Coulombe of 21 Reef Road, are now protesting.

The appeal, submitted March 24, claims Smith “improperly issued development permits for a foundation, driveway and septic system for 24 Reef Road and 26 Reef Road.”

The document alleges several violations of town ordinances, but documents supporting the claims do not have to be provided until April 12, two weeks before an April 26 hearing before the Zoning Board of Appeals for April 26.

The reason for filing the appeal is “to protect the property, keep it from being developed,” John Fatula said. The Fatulas and Coulombe live directly across the street from the lot in question and a residence built there would hamper their view of the ocean. Coulombe could not be reached for comment on his motives for appeal.

For two decades Pya Chang has been trying to build on the property, an aim that has been prevented by town ordinances regulating lot size, minimum setback requirements and septic tank placement.

Chang and her husband Alvin Mack bought the property in 1980 for $100,000 with the intention of building a home there. Before the purchase she received verbal and written assurances from the Cape Elizabeth code enforcement officer that a building permit could be obtained for the property, according to court records.

However, when an application for the permit was submitted, it was rejected on grounds that the proposed home failed to meet the setback requirements set forth in town ordinances. Chang’s appeal went all the way to the Maine Supreme Court, which ruled in 1983 that the town was justified in rejecting Chang’s application for the building permit.

Circumstances changed last fall when Chang’s son, Adam Mack, bought the abutting 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, Pya Chang applied for a permit for the construction of a foundation.

The application also included an easement agreement that would allow the septic tank serving 24 Reef Road to be situated on 26 Reef Road.

Based on the new circumstances, Smith’s interpretations of the ordinances and those of lawyers representing the Town and the property owner the proposed construction of a foundation was found to be in accordance with town ordinances. The building permit Chang had been pursuing for the past 20 years was finally granted.

The appeal filed last week claims the interpretations of town ordinances by Smith and the lawyers was faulty. The appeal lists six specific examples of violations. But until specific documentation is provided to support the appeal’s claims, Smith can only speculate on their reasoning.

“I gave the permit on the information submitted by the applicant,” said Smith. He said the Fatulas’ and Coulombe’s claims appear to show the ordinances were “interpreted differently by their experts.”

Fatula said that all claims made in the appeal are “legitimate points to be raised,” and are based on “reading the code” and lawyers “reviewing the situation.”

Fatula said the Shore Acres Neighborhood Association will meet to determine what role the neighborhood might play in the Zoning Board of Appeals hearing.

Adam Mack and Pya Chang could not be reached for comment on this story.

What the issue will come down to is a difference in interpretation, which Smith said is unavoidable.

“You can never get around that entirely,” he said.

For instance, the appeal states “the proposed building envelope violates the 75-foot minimum shoreland setback from the normal high water line.”

Cape Elizabeth’s Zoning Ordinance defines “normal high water mark” as “that line on the shore of tidal waters which is the apparent extreme limit of the effect of the tides, i.e. the top of the bank, cliff or beach above high tide.”

Smith said the “normal high water mark” can be found easily when made apparent by soil discoloration or vegetation change, but without those visual cues the location of the high water mark becomes somewhat subjective. Trundy Point is a rocky ledge protruding into the ocean and covered in part by soil and grass. The ledge rises above the ocean to a height of about 22 feet and descends jaggedly into the ocean with no clear visual high water mark, Smith said.

“When there’s a lack of a clearly defined line we depend on the maximum spring high tide line, which is what the state uses,” said Smith. “Since I know the terrain … using the spring high tide is a logical approach.”

In the 1983 court case, the Maine Supreme Court upheld the town’s decision to abide by the town building inspector’s location of the high water mark as “a line of vegetation, beyond which the topography is characterized by jagged ledge and small pools.” In doing so, the court rejected Chang’s claim that, in the court’s words, “the high water mark was the exact still-water level of the extreme limit of the tide itself, not including the effect of waves and ocean spray.”

Though no supporting documentation has been provided yet, it is probable that the appeal will claim that the high water line is the top of the ledge, not the estimated spring high tide that Smith used, which falls somewhere in between the top of the ledge and the ocean.

The appeal also claims the building permit violates a100-foot minimum setback from coastal sand dunes, restrictions for construction within a floodplain and the minimum lot size requirements for private septic systems serving two residences from one lot. The reconfiguration of lot lines that made the permit possible is also said to be in violation of town ordinance.

Once supporting documentation is provided for these claims the situation will become more clear, Smith said.

“That’s when I’ll have a better picture of what we’re looking at,” he said.