Neighbors sue over Cape Elizabeth house, driveway

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CAPE ELIZABETH — Residents have filed two lawsuits over building and driveway permits issued for a house under construction at 6 Stonegate Road.

David and Tracey Weatherbie of 14 Stonegate Road filed a complaint in Maine Superior Court on Jan. 27 against the town of Cape Elizabeth. Robert H. Stier Jr. of 9 Rock Crest Drive filed a complaint on Wednesday against the town, developer Early Bird Group and former property owner Peter I. Wovkonish.

The Weatherbies are challenging a Zoning Board of Appeals decision to allow a building permit for the house at 6 Stonegate Road. The complaint states that Bruce Smith, the code enforcement officer, issued the permit based on incomplete and misleading evidence and without Planning Board approval.

Stier is challenging a decision by Public Works Director Robert Malley, who issued the driveway permit to Early Bird, developer of two lots that abut the public right-of-way of Stonegate Road. Stier claims the property is being marketed as new property in Stonegate, but is not part of the subdivision and is not bound by its covenants.

Although the complaints were filed separately, Stier said the complainants will ask the court to consolidate the two cases. Stier, an attorney, represents the Weatherbies, and Maryland lawyer Joseph A. Stevens is helping Stier in his case.

Graham Pillsbury, manager of Early Bird Group, developers of the land, said he has offered to compromise with Stier on three or four occasions.

“We’ve offered to join the association, we’ve offered to abide by their rules and put the driveway on Mitchell Road,” he said. “This is a case of an attorney stalling the process and using the system.”

Pillsbury said Cape Elizabeth has very stringent rules and ordinances and he has followed these rules “to a T.”

Despite the lawsuits, Pillsbury said he will continue to build. “This is our livelihood,” he said.

Building permit

The Weatherbies appealed to the Zoning Board of Appeals on Dec. 28, 2010.

According to Stier, in order to divide land into three parcels without Planning Board approval, the owner must retain one of the lots as a primary residence for at least five years prior to creating separate lots. If those stipulations do not apply, he said, the owner has to go before the Planning Board for subdivision approval.

The Weatherbies’ complaint argues that the owner, Peter Wovkonish, of 370 Mitchell Road, moved to and became a resident of Florida in 2009, so he was not a resident of the home immediately preceding the division of his land.

The complaint argues that Smith knew Wovkonish was a resident of Florida and did not use 370 Mitchell Road as a primary residence for five years prior to the division of his land. It also claims Smith abused his discretion to issue the building permit by failing to verify the subdivision was legal and by ignoring substantial evidence that the subdivision required such approval. 

The complaint asks the court to reverse the ZBA decision against the Weatherbies’ appeal and rescind the building permit.

Driveway permit

Stier filed his lawsuit after his appeal to reverse Malley’s decision was denied by the Town Council on Jan. 10.

Councilors Anne Swift-Kayatta, Frank Governali and Jim Walsh recused themselves from the discussion. Swift-Kayatta’s husband is a partner in the Stier’s law firm; Governali owns property in Stonegate and is a member of the subdivision association, and Walsh lives in the Stonegate development.

The remaining four councilors were split on the substantive issues presented by Stier’s appeal, so the appeal was denied.

Stier argues that developers Early Bird shouldn’t have been able to put a driveway onto a road that is entirely within a separate subdivision. By doing so, he said the developers are marketing the house as part of the subdivision without having to follow its rules and covenants.

The driveway also cuts through about 80 feet of natural vegetation and landscaping maintained by the subdivision residents, he said.

In addition, Stier said Malley issued the driveway permit without seeking Planning Board approval, a violation of town ordinances regarding subdivisions. He wants the court to rescind the driveway permit.

“The goal of this proceeding is quite simple: to have the builder relocate the driveway onto Mitchell Road,” Stier said. “We’ve asked him to do that and we’ve been forced to file suit because he has refused.”

Arguments have not been scheduled in either case.

Amy Anderson can be reached at 6781-3661 ext. 110 or aanderson@theforecaster.net

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