A group of Edgartown abutters to the Harbor View Hotel were properly notified about a zoning board of appeals hearing on changes to the hotel’s pool bar, a superior court judge said Friday.
In an 11-page decision, the Hon. David A. Ricciardone allowed a motion to dismiss all procedural claims from abutters against the town zoning board, but denied the hotel’s request to dismiss the abutters claims that they found the new pool bar to be a nuisance.
The decision marks a win for the town, but leaves an avenue open for the aggrieved neighbors to continue further proceedings against the hotel on grounds that the new location of the bar may cause an annoyance, disturbance or emotional distress.
A special permit to relocate and replace the hotel’s former pool bar within the premises of the hotel was granted in May by the zoning board of appeals. The permit requested moving the 225-square foot pool bar from the east side of the pool to an unpaved patch on the pool’s far side, decreasing the actual bar’s square footage by about 50 feet.
The case began this summer when a group of abutters, led by direct abutter Lynn Allegaert, appealed the decision in superior court on grounds that they were not properly notified of the special permit application.
In court documents, abutters claimed that the new bar carried more sound and was both more visible and easily accessible from the roadway than before. They also said the new bar had a much larger seating area that infringed on the hotel’s lawn, rather than staying contained within the pool area.
Counsel for the abutters described the pool area as a “shocking commercial blight” and a “tiki bar.”
Multiple hearings were held on the case in July, with many of the abutters appearing in court. On July 25, Judge Riccardione denied the abutters’ request for injunctive relief, adding in a footnote that the new pool bar was generally consistent with other renovations done to the hotel in the past year — none of which received pushback from the neighbors.
“While the court acknowledges that a bar’s beauty is in the eye of the beholder,” Judge Ricciardone wrote, “the term ‘tiki bar’ connotes a palm frond hut with a thatched roof as a backdrop for Polynesian dance shows. The plaintiffs . . . must concede that the construction here competes in a different league from that image.”
Attorneys for the hotel filed a motion to dismiss the claims. A hearing was held on Oct. 7, and after arguments on both sides, Judge Ricciardone took the matter under advisement. His decision arrived Friday.
In the heart of the case, Judge Ricciardone ruled that zoning board administrative assistant Lisa Morrison notified abutters in a timely manner about the changes to the pool bar and adequately posted notice of a public hearing.
“It defies logic and credibility to conclude that a zoning administrator of more than 16 years experience would so completely fail, as the plaintiffs contend, in one of her most important and fundamental functions,” the judge wrote in part.
Abutters claimed that they were improperly notified of the public hearing because they did not receive notice at their off-Island addresses. But Judge Ricciardone said the town’s responsibility was to send notices to listed address, not track down the whereabouts of homeowners.
“It is noteworthy . . . that in their original complaint, the plaintiffs swore that they owned property as individuals, apparently implying that notices should have been sent to their Edgartown addresses,” the judge wrote. “Only after the zoning administrator filed her affidavit with the court averring that she (correctly) mailed notice to the actual LLC and trust owners’ addresses did the plaintiffs file their second set of virtually identical affidavits admitting that the properties in question are not individually owned but that no notice was received at their off-Island addresses also.”
Judge Ricciardone said abutters still have a legal right to file nuisance claims over activity at the hotel.
“The court agrees with the plaintiffs that as a matter of law, the permitting process does not immunize the hotel from liability for nuisance and negligence that may flow from the licensed activity,” he wrote. “Even if the pled allegations are viewed as improbable in fact, at this stage of the proceedings, the pleadings on these counts achieve a level beyond mere labels and conclusions, if only by a small margin.”
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