Maine high court hears latest in clash over $12M Bar Harbor hotel

Posted Sept. 15, 2011, at 1:23 p.m.
Last modified Sept. 15, 2011, at 3:40 p.m.

PORTLAND, Maine — How a lawyer identified himself before a local zoning board is at the heart of a dispute between rival Bar Harbor hoteliers that was heard by the Maine Supreme Judicial Court Thursday.

Thursday’s hearing before the Law Court was the latest development in a two-plus-year battle over whether Ocean Properties, doing business as North South Corp., should have been permitted by the town of Bar Harbor to build a $12 million hotel on West Street. The hotel is currently under construction and is expected to open in June 2012.

The immediate issue facing the Law Court is whether attorney Ed Bearor’s status as an advocate for the Witham Family Limited Partnership — the group headed by hotelier David J. Witham in opposition to the hotel project — was clearly defined during town proceedings.

If it was not, as argued by North South Corp. attorney William Devoe, the Witham Family Limited Partnership could lose the legal standing to challenge the Zoning Board of Appeals’ decision to allow the project. If a party does not officially partake in the board of appeals process, it cannot file a legal appeal to the board of appeals’ decision, which in this case was to overturn the town Planning Board’s rejection of the hotel plan.

If Bearor is seen by the Supreme Judicial Court as having been a clear representative of Witham’s party in the town proceedings, the court could send the case back to the Superior Court, where Hancock County Justice Kevin Cuddy decided Witham’s party did not have the legal standing to appeal the town Zoning Board of Appeals ruling.

Back at the Superior Court, the rival hoteliers would renew arguments over whether the project should have been permitted in the first place, essentially rebooting the controversy.

Bearor chose to speak during Bar Harbor hearings during time set aside for members of the public, and not during time allotted for official stakeholders to participate, therefore muddying his role in the proceeding, Devoe argued. The North South Corp. attorney said he hopes the Law Court will agree with Cuddy that Witham’s party does not have the standing to fight the town’s ruling because it didn’t officially take part at the Zoning Board of Appeals level, and put an end to the legal dispute over the new hotel.

Attorney John C. Bannon represented the Witham Family Limited Partnership in court Thursday, and pointed to Bar Harbor Planning Board meeting minutes from Aug. 19, 2009, at which Bearor is quoted as having identified himself as representing the Witham group, suggesting that statement cemented his role as an official Witham advocate thereafter.

The justices of the Maine Supreme Judicial Court who questioned Devoe Thursday seemed skeptical of North South’s assertion that Bearor’s role was “unclear” during Zoning Board of Appeal proceedings, regardless of what portion of the meetings he chose to speak during.

“Everyone was aware of why Mr. Bearor was there [before the Zoning Board],” Chief Justice Leigh Saufley told Devoe. “Do we want to inject in municipal hearings [strict legal definitions of representation]?”

Added Justice Jon Levy: “Did [the fact that Bearor spoke during the public portion] prejudice the municipal proceeding in some fashion? … Are we supposed to pretend that they didn’t know who he was?”

But Devoe maintained that, even though municipal hearings are often “informal,” the legal system cannot make assumptions about whether legal representation is taking place. Either Bearor was an official representative of the Witham Family Limited Partnership during the zoning proceedings or he was a member of the public — in the latter case, he argued, the Witham group did not officially have a representative take part in the board’s process and lost the right to challenge its decision.

After Thursday’s hearing, Devoe admitted the line of questioning he faced by the judges was “lively.”

But he said the Law Court’s decision on the matter may have wide-ranging impact. He said the court’s ruling will “send a message to participants before municipal boards — it has implications for how parties identify themselves [during municipal proceedings].”

CORRECTION:

An earlier version of this story contained a spelling error. The North South Corp. attorney is named William Devoe not William Davoe.

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