The Lumbery in Cape Elizabeth is not complying with local zoning ordinances by storing and displaying products, such as plants and flower boxes, in unapproved locations on its property. Co-owners Ryan Holland, left, and Mike Friedland, say it is too costly for them to comply. Drew Johnson / The Forecaster

The Cape Elizabeth Town Council wants to keep the town’s case against a popular local hardware and lumber store out of court.

The council voted unanimously Monday to direct the town attorney to reach an agreement with the owners of The Lumbery in the town center over zoning violations. The business has come under fire by the town because it stores and displays some merchandise, such as flower boxes, picnic tables and lumber, in its parking lot.

The business at 287 Ocean House Road has been consistently in and out of compliance since 2020, town officials say, and has received numerous warnings. Co-owner Mike Friedland says it is too costly for the business to apply for approval every time it wants to move something around on the property outside.

The town has filed a lawsuit in U.S. District Court in Portland seeking fines ranging from $100 to $5,000 for each day the ordinances have been violated. Court action on the complaint has been delayed until October, according to Town Manager Matt Sturgis.

As part of the council-ordered agreement, the town would waive the monetary penalties. The council vote to settle the matter out of court came after it heard from residents, dozens of whom turned out Monday in support of The Lumbery and its three owners, Friedland, Ryan Holland and Jennifer Stora.

“Mike has done nothing but improve this community and improve that street corner,” said Lumbery customer Kevin Barry, a Cape Elizabeth resident who owns a home repair business. He urged the council to end the lawsuit and find a way to better work with small businesses in town.

“I will not grow or invest into my business or even consider buying property for my business in this town right now in light of what’s going on,” Barry said. “I hear, not only from Mike but other small businesses in town, of the challenges they faced.”

John Voltz and other residents argued that The Lumbery is doing its part to make Cape Elizabeth’s town center “vibrant,” a goal of the town’s 2019 Comprehensive Plan.

The town has more important issues to consider instead of suing a local business, according to Kate Stewart, who said she has lived in Cape Elizabeth for 19 years.

“We do not need to have a lawsuit against them with our tax money,” she said. “It’s a waste of time, it’s a waste of energy when, really, you guys have a lot to focus on.”

Friedland asked the council to drop the case altogether and received a lengthy round of applause from audience members.

In an interview Wednesday, Friedland said that while the council’s vote is a step in the right direction, the harm to his business remains.

“We still have to pay for our lawyer, and we can’t even pay to fix our truck and we’re barely making payroll,” said Friedland, who is a South Portland resident. The Lumbery has 10 employees.

“Not pursuing a bad action is good, but what’s even better is pursuing a good action,” he said.

The council should investigate why the issue arose and how the town can work with local businesses to avoid similar problems in the future, he said.

The Lumbery needs to update its site plan in order to come back into compliance. It has made multiple site plan amendments and changes, approved by the Planning Board, since 2020, according to a June 1 memo from Code Enforcement Officer Benjamin McDougal and a July 13 memo from Sturgis. Currently, they do not comply with an ordinance that states “any alteration to a site which is inconsistent with the approved site plan shall require an amendment to the site plan. Planning Board approval must be obtained prior to the alteration.”

Essentially, Friedland said, the Lumbery needs approval to display and move products around in its parking lot.

“They would need to know exactly where that item is going and what it would look like,” Friedland explained. “During the course of business, if I thought, ‘You know what, I just got approval for it to be in that spot, but I actually want it to be in a different spot,’ I would need to apply for a site plan amendment.”

The Lumbery simply couldn’t afford to apply for more amendments, he said.

“Every site plan amendment through the Planning Board takes six months and costs $20,000,” he said, which includes professional designs, representation at Planning Board meetings and other fees.

“I just can’t operate my business in a sensible manner if I’m dependent upon Planning Board approval to move displays,” he said. “It’s common sense.”

The code enforcement officer would not comment on The Lumbery’s violations, referring The Forecaster to his memo and Sturgis’ memo.

“The Lumbery is a nice business for Cape Elizabeth,” McDougal said. “Hopefully, we can find a solution that allows them to operate within the parameters of the zoning ordinance.”