High court to hear Market Cafe-Old Town case

OLD TOWN – The continuing legal skirmish between the Market Cafe on Stillwater Avenue and the city of Old Town has reached the state’s highest court. The Maine Supreme Judicial Court has scheduled oral arguments April 4 on appeals from cafe owners Claudia and Antonio Dimoulas regarding a state court jury decision 16 months ago. The Law Court also will hear argument on a cross-appeal from the city of Old Town.

The complex and often controversial land-use case has continued for close to six years, pitting the owners of a small neighborhood restaurant against a city administration that claims the business is operating in a zone that does not permit business use.

The matter came to a head last spring when the city sued the couple, asking a Penobscot County Superior Court jury to decide whether a petition-driven zone change in 1999 was valid. The change resulted in a renaming of the zone in which the Market Cafe was located to a zone where businesses are allowed. The jury, on Nov. 1, 2000, decided Old Town residents were wrong when they voted to change the zoning on the eatery and ordered it to revert to a residential zone. Yet the Market Cafe was allowed to continue operating as a restaurant. The Old Town Planning Board had granted the Dimoulases site plan approval for the business with no conditions attached after the referendum vote on the zone change.

Another legal issue dealt with at the fall 2000 trial was the Dimoulases’ countersuit, in which they claimed their civil rights were violated by a denial of their victualer’s license in 1998. The jury found in their favor on this matter and awarded them $2,500, but the award and the civil rights claim later were thrown out by a judge acting on a post-trial motion. A defamation claim against the former Old Town city manager was thrown out before the trial started.

The Dimoulases, now representing themselves with the part-time help of Bangor attorney Charles Gilbert, want the state supreme court to uphold their civil rights claim.

The city wants the Law Court to decide, basically, whether the restaurant should still be allowed to operate, because the zone in which it is located has reverted to an R-1 (residential) zone and they claim the restaurant is an example of illegal spot zoning. There also is a question of whether the eatery is allowed to continue operating in a shoreland zoning area.

Attorney Mark Franco of Portland will represent the city at the April 4 hearing. It remained unclear whether the Dimoulases would argue the case themselves or whether Gilbert would argue the matter before the Law Court.

In a faxed release, Claudia Dimoulas said the case is about “the power a municipality can try to wield if it doesn’t like the results of a vote which the municipality itself demanded. It is a battle of David vs. Goliath.”