A zoning case regarding a pool bar at the Harbor View Hotel filled half of the Dukes County Superior courtroom with abutters Wednesday morning. Several of these abutters were plaintiffs in the case, and were represented by Edgartown attorney Dan Larkosh. Boston attorney Kevin O’Flaherty represented the hotel. Town counsel Michael Goldsmith was also present to represent Edgartown’s zoning board of appeals, but hardly spoke.
The crux of the case is that a number of abutters allege they failed to receive notice from the zoning board about a building project designed to reposition a pool bar to another spot on the hotel grounds. The neighbors contend that if they knew, they would have argued against the project at a zoning board hearing held on the subject.
Larkosh requested an injunction against the pool bar until the legal issues were fully explored.
Judge David Ricciardone told Larkosh he would need to demonstrate a likelihood of success on the merits for the case to proceed. Larkosh argued he could meet that burden, and that O’Flaherty’s motion to dismiss wouldn’t prevail.
Larkosh said something is amiss when numerous abutters fail to receive notice. He alleged a number of specific flaws in the zoning board notice and notice procedure, and said a case called Kramer v. Zoning Board of Appeals of Somerville informs his clients’ position. He alleged the Harbor View Hotel has already violated a 1992 special permit by replacing lawn with a 2,275-square-foot patio and adding 59 exterior lights, among other things.
“Notice is the tail, not the dog,” O’Flaherty said, but pertaining to notice, he alleged that Edgartown had satisfied the statute in how they gave notice. He argued Larkosh’s case did not meet the burden necessary to realize an injunction, and that the likelihood of success for Larkosh’s case is “zero.” O’Flaherty said the pool bar’s impact is mitigated by buildings, “heavy vegetation,” and distance.
Larkosh and O’Flaherty disagreed as to whether the Edgartown assessors office had properly certified the abutters’ list.
Judge Ricciardone said he would take the matter under advisement, and would likely attempt a site visit later in the day.
