June 23, 2018
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Bar Harbor hotelier dispute headed to Law Court

By Bill Trotter, BDN Staff

BAR HARBOR, Maine — In a dispute over whether a hotelier should have been granted permission to build a $12 million hotel on West Street, a rival business owner is appealing the case to the Maine Supreme Judicial Court.

The Witham Family Limited Partnership, headed by hotelier David J. Witham, is appealing a decision late last year by Hancock County Superior Court Justice Kevin Cuddy to dismiss an appeal brought by Witham of the town’s approval of Ocean Properties’ latest West Street project. Ocean Properties, which operates more than 100 hotels and resorts in North America,  is owned and operated by the family of Bangor native Thomas T. Walsh.

Earlier this year, Witham’s attorney, John C. Bannon of Portland, filed a notice of appeal in Hancock County Superior Court, alerting the court of Witham’s plans to take the case to the Law Court.

In his Dec. 22 decision, Cuddy ruled that the partnership did not have standing to appeal either the initial Bar Harbor planning board rejection of Ocean Properties’ application or the appeals board’s subsequent decision to overrule the planning board.

Witham cannot appeal a decision that he supported, namely the planning board’s initial finding that Ocean Properties’ proposal did not conform to local land use ordinances, the judge determined.

As for the decision by the Bar Harbor Appeals Board to overrule the planning board, the partnership did not participate in that proceeding and so does not have the ground to appeal, Cuddy wrote.

Bannon said last week that, though Witham agreed with the planning board rejection of the hotel project, he disagreed with some of the board’s reasoning. In particular, the planning board supported Ocean Properties’ claims that it would have enough parking for the hotel and that it has adequate authority to make substantial changes to the road Lennox Place, over which the town has right-of-way. Witham, Bannon said, believes the planning board erred in agreeing with Ocean Properties on these points and is trying to appeal these findings.

Bannon said the partnership also is appealing Cuddy’s ruling that Ed Bearor, Witham’s legal representative during the planning board and appeals board reviews, did not represent himself as an attorney for the partnership during the appeals board review. Cuddy determined that because the partnership technically did not participate in the appeals board review, the partnership does not have standing to file a court appeal of the appeals board decision.

Bannon said that, regardless of which entity Bearor said he was representing during the appeals board review, he was representing Witham’s interests, which are identical to those of the partnership. It’s a technical distinction without a substantive difference, he indicated.

“That’s participation [by Witham], no matter what name you put on it,” Bannon said.

Ocean Properties’ attorney, William Devoe of Bangor, said Tuesday that both the appeals board and Cuddy were correct in their decisions. He said that because Witham frequently has pursued legal challenges to Walsh’s projects, the latest appeal is not surprising.

“I think Justice Cuddy put a lot of thought into his decision, and we think he got it right,” Devoe said. “We are confident the Law Court will uphold Justice Cuddy’s decision.”

Devoe said that, legally, Witham’s appeal is not expected to have any effect on Ocean Properties’ ongoing construction project of the new hotel. Bannon said the appeal itself will not affect the construction project, but added that the project will be in jeopardy if the Law Court sides with Witham.

“They build it at the risk of having to tear it down,” Bannon said.

Bannon said the partnership’s arguments in the appeal are not due to be filed until sometime in May. When or if the Law Court might hold oral arguments in the case has not been determined, he said.

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