YORK — The state Supreme Judicial Court overturned a lower court decision that dismissed a lawsuit brought by Daniel and Susan Raposa over the Gammon Lawn Care business in York Harbor. The SJC remanded it back to York County Superior Court Justice John O’Neil for a hearing on the merits of the case.

“I’m very pleased that this has been remanded back to Justice O’Neil. Now he has to make a decision based on the legal argument we raised. That’s all we wanted from the beginning,” said Daniel Raposa.

At the heart of this case is an email Code Enforcement Officer Amber Harrison wrote to Dan Raposa in April 2016. Raposa had asked her to investigate whether Gammon’s use of his 650 York St. property was grandfathered from the time when former owner Peter Marcuri used it as the site of an excavation business. Raposa maintained a notice of violation should be ordered because Gammon’s use was different and more intense.

Harrison wrote back that in her opinion the lawn care business is grandfathered and “no violations are warranted.” Raposa appealed the email to the Board of Appeals, which concurred with Harrison. The Raposas then appealed that to the Superior Court.

O’Neil did not rule on the merits, but rather said the court had no jurisdiction to hear the case at all – basing his decision on arguments raised by the town and Gammon, who joined with York in this appeal.

O’Neil relied on a 2001 SJC ruling in a Waterboro case, the centerpiece of York’s argument. In that case, Waterboro declined to initiate enforcement action against a gravel pit operator. A subsequent Board of Appeals decision, as a result, was advisory only, the SJC ruled at the time.

“Only notices of violation and enforcement actions are reviewable by the court,” O’Neil stated. Harrison’s email was neither. As a result, “the court lacks subject matter to review it.”

The SJC disagreed, saying case law and state statute subsequent to 2001 have tempered the situation. Harrison’s email, although not a written order or notice of violation, can be appealed to the Superior Court, the high court determined. “We hold today that the CEO’s written decision interpreting a land use ordinance is appealable to the Board and in turn to the Superior Court – whether the CEO finds that there is or is not a violation – as long as the ordinance does not expressly preclude appeal.”

In York’s case, when the BOA determined Gammon’s use was grandfathered, “this determination, which would be final if the Raposas could not appeal, allows Gammon to continue to operate his law service business, thereby affecting the use of Gammon’s property and potentially affecting the value of the Raposas’ abutting property.”

Harrison said Monday she has not reviewed the decision with the town’s attorney and was not prepared to answer questions at this time.

Raposa said, even though this decision will likely prolong the case for an undetermined length of time, he believes it provides a path forward on the merits, which is all he’s wanted. “I’m confident when you look at these arguments, there are several reasons why Gammon’s business is not grandfathered."