Pizzeria’s dispute with developer/landlord gets nasty
By Chris Busby
The legal dispute between the local pizza chain Portland Pie and Scarborough developer Kerry Anderson may not be resolved by year’s end, but before then, the pizzeria may lose access to parking that its owners claim is vital to their Portland location’s viability.
Meanwhile, details are emerging about Anderson’s plans for the block behind Portland Pie’s Fore Street location. A preliminary engineering report included in court documents shows the footprints of four large buildings – one of them on the spot currently occupied by the popular Irish pub Brian Ború. Anderson has expressed interest in buying the pub – the lone parcel on the block he does not own – but the pub’s owners have thus far refused to seriously negotiate its sale.
Anderson claims soot from Portland Pie’s pizza oven is causing problems for other tenants in the building. He is trying to evict the pizza parlor, and has filed a counterclaim to Portland Pie’s legal challenge of the eviction order.
Neither Anderson nor Tim Bryant, the lawyer representing Portland Pie owners Stephen Freese and Nathaniel Getchell, responded to calls seeking comment this month.
Anderson’s attorney, Ted Small, confirmed the general details of the dispute, but said he can’t comment on when the pizzeria may lose access to the side parking lot, and said he did not know details of Anderson’s larger development plans.
Included in court documents is an April 2006 letter to Anderson from Sue-Ellen McClain, head of the McClain Marketing Group, which has offices above the pizza shop. “Due to the Portland Pie ventilation problems, our office space has become unsanitary and injurious over the past few months,” McClain wrote. “Employees have quit, others refuse to come to work based on the unsafe health conditions, and potential new employees are refusing offers. Our clients are afraid to enter our space.”
Black particles have wafted into the office and settled on computers and other surfaces, creating a “filthy and insalubrious office environment,” McClain wrote. The letter asks Anderson for a rent reduction and informs him that McClain Marketing has been forced to seek office space elsewhere.
Over a year later, the marketing group still occupies space above the pizza shop. Portland Pie has operated at this location since late 2004. McClain could not be reached for comment this week.
Alan Fishman, owner and president of Fishman Realty Group, also has an office above Portland Pie. He said his company is experiencing the same problem with particulates wafting in.
“I’m getting complaints about it [from my employees] – eyes watering… breathing issues,” said Fishman, who has not personally been affected. The problems have been happening “pretty much since [Portland Pie] moved in,” he said. “It’s gotten worse recently. It’s become more noticeable.”
The parking dispute involves a handful of spaces facing Fore Street used by Portland Pie delivery vehicles and pick-up customers. This past spring, after pizza shop employees saw workers preparing to block access to the spaces, Bryant filed a motion seeking a temporary restraining order.
Superior Court Justice Robert Crowley denied that request in a ruling earlier this month, though to date the spaces are still accessible. Crowley rejected claims that a prior lease agreement gave Portland Pie access to the spaces, and that the loss of the spaces would significantly harm the business.
Anderson has submitted plans to the city for a seven-story retail, office and condominium building on the corner of Fore and Center streets, just west of Portland Pie. City planning officials are still reviewing details of the project.
Anderson acquired the block around Brian Ború in January 2006 for $3.5 million, according to court documents. As The Bollard reported last summer, the developer has talked of building a large, mixed-use complex of structures on the site, but details have been hazy.
The May 1 correspondence to Anderson from an engineering firm, included in the Portland Pie case file, doesn’t shed much more light on the development plans, but indicates those plans are in motion. The study by Fairbanks Engineering Corp. provides soil data relevant to the construction of up to two levels of underground parking on the site.
The four buildings’ footprints cover almost the entire area between Center, Cotton, Fore and Spring streets. The existing office and retail building at Fore and Cotton streets remains as is. The study notes that plans envision buildings up to 12 stories high on the Spring Street side of the property, and four stories high on the Fore Street side.
Brian Ború co-owner Laurence Kelly said he and his partners were unaware of the study and have no specific knowledge of Anderson’s larger plans for their parcel and the surrounding property.
A recent court-ordered mediation session between Portland Pie and Anderson failed to produce an agreement. Bryant has said his clients have offered to modify the oven-ventilation system, but that offer was deemed inadequate by Anderson.
In addition to claims related to Portland Pie’s lease, Bryant is also alleging slander, trade libel, harassment and trespass on Anderson’s part.
In court documents, Bryant claims Anderson told other tenants that Portland Pie is “a shoddy business” and “unsanitary.” He claims Anderson called the Portland Fire Department and “made the false allegation” that there was a carbon dioxide gas leak at the pizzeria. He also claims Anderson complained to city code enforcement officers that Portland Pie’s oven was out of compliance and “a danger to the public,” though inspection officers subsequently found no violation, he wrote.
The trespass charge stems from allegations Anderson entered the pizza shop unannounced during peak hours to conduct other business.
Anderson “developed a scheme to evict Portland Pie because its business operations and right to use the [adjacent parking area] will thwart or interfere with [his] development plans,” Bryant claims in court documents.
Regardless of whether the oven vent is producing soot, its location doesn’t fit well with Anderson’s plans for the seven-story building next door. The vent, located a few feet off the ground, would be in the path of a cobblestone walkway Anderson plans to create between Portland Pie and the new building. The walkway would lead to entrances for tenants and guests.
Given the complexity and pace of the case – with its dueling claims and extensive “discovery” period – it seems unlikely to be resolved this year.