Law court vacates lower court decision on Bar Harbor hotel dispute

Workers install panels (at far right) Friday, Nov. 4, 2011, on Ocean Properties' West Street Hotel in Bar Harbor. Maine's supreme court has ordered a lower court to re-hear a case brought by a rival hotelier challenging Bar Harbor's municipal approval of the $12 million project.
Bill Trotter | BDN
Workers install panels (at far right) Friday, Nov. 4, 2011, on Ocean Properties' West Street Hotel in Bar Harbor. Maine's supreme court has ordered a lower court to re-hear a case brought by a rival hotelier challenging Bar Harbor's municipal approval of the $12 million project. Buy Photo
By Bill Trotter, BDN Staff
Posted Nov. 04, 2011, at 3:06 p.m.

BAR HARBOR, Maine — Maine’s highest court has vacated a lower court decision about whether a local hotelier has proper standing to appeal the town’s approval of a rival hotelier’s construction project.

As a result, a dispute between Witham Family Partnership and Ocean Properties about the town’s approval of Ocean Properties’ West Street Hotel is headed back to Hancock County Superior Court. No stop work order has been issued and construction on the $12 million, 102-room, four-story hotel is moving forward with an expected completion date of sometime next spring.

The Witham Family Partnership, headed by hotelier David J. Witham, had challenged a local appeals board decision to approve the West Street Hotel project. In April 2010, Bar Harbor’s appeals board voted 3-2 to overrule the local planning board rejection of Ocean Properties’ proposal, allowing the project to get under way. Ocean Properties is owned and operated by the family of Bangor native Thomas T. Walsh.

Witham then appealed the town’s approval to Hancock County Superior Court, where Justice Kevin Cuddy subsequently upheld the town’s approval. In his December 2010 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, Cuddy decided.

The planning board had rejected the project based on its proposed height, which the board said would exceed local limits. But the board agreed that the project would have adequate parking and that it has authority to make substantial changes to the Lennox Place roadway, over which the town has right-of-way. Witham disagreed with the parking and right-of-way findings, and so appealed the planning board’s reasoning for its rejection.

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. Bangor attorney Edmond Bearor, Witham’s attorney at the time, did participate in the town’s appeals board process but did not appropriately present himself as Witham’s representative, hence the lack of standing, Cuddy ruled.

Last winter, Witham appealed Cuddy’s decision to the Maine Supreme Judicial Court, which heard oral arguments in the case in September.

On Nov. 1, the law court ruled in favor of Witham and vacated Cuddy’s decision. In its decision, the law court ruled that Bearor’s appearance before the town’s appeals board, and his established history as Witham’s attorney in the planning process, was sufficient to establish standing for Witham in the town’s appeals board review.

The law court also determined that Witham had a right to appeal the reasoning of the planning board rejection because, given the anticipated appeals board process, the planning board’s ruling “created a continuing opportunity for injury to the partnership, which is all that is necessary to confer standing.”

Witham’s attorney, John C. Bannon of Portland, said Friday that there has been precedent in state law that supports Witham’s position that he has grounds to challenge the project in court.

“We were always very confident we would win this appeal,” Bannon said.

Ocean Properties’ attorney, William B. Devoe of Bangor, said Friday that the issue of standing in deliberative municipal reviews “clearly is evolving.”

He said he sees the decision as an effort by the law court to clarify how such standing should be determined. What the law court seems to be saying, he said, is that such proceedings are not expected to be as formal as a reading of any municipality’s appeals ordinances might suggest. “Whether [that interpretation] will prove to be practical is hard to predict,” Devoe said.

Bannon and Devoe each said that future superior court arguments on the case likely will focus more on the substantive matters that were argued before Bar Harbor’s planning and appeals boards than on the procedural issues that were presented to Cuddy in 2010.

According to Devoe, written briefs likely will be submitted in the next couple of months and potential oral arguments to be presented later this winter. Bannon said he expects it will be “a few months” before oral arguments are heard in Hancock County Superior Court.

The ongoing dispute between Witham and Walsh over the West Street project is the latest chapter in a rivalry between the two hoteliers that stretches back more than a decade.

At last count, Witham — either on his own, through the partnership or with minority stakeholders — owns 13 hotel properties in Hancock County, including the Bar Harbor Inn and eight others in Bar Harbor. The estimated total number of rooms in all of these hotels is more than 1,000, while the cumulative assessed values for all the properties is estimated to be more than $50 million.

Ocean Properties owns and operates more than 100 hotels and resorts in North America, including the Harborside Hotel & Marina and the Bar Harbor Regency in Bar Harbor and others elsewhere in Maine. Ocean Properties would be one of the developers of a proposed racino in Biddeford if Maine voters give their blessing to the proposal in next week’s statewide elections.

Follow BDN reporter Bill Trotter on Twitter at www.twitter.com/billtrotter.

http://bangordailynews.com/2011/11/04/news/hancock/law-court-vacates-lower-court-decision-on-bar-harbor-hotel-dispute/ printed on September 20, 2014