Judge denies pool bar injunction

Case remains active, but Edgartown has moved for dismissal. 

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Town counsel Michael Goldsmith and Harbor View Hotel attorney Kevin O'Flaherty confer before a recent court hearing on the hotel's pool bar.

Updated July 30

In a June 25 decision, Dukes County Superior Court Judge David Ricciardone denied an injunction meant to halt construction of a pool bar at the Harbor View Hotel and to prohibit its use.

Neighbors, led by abutter Lynn Allegaert, filed suit against the hotel based on a claim that they had not been notified of the pool bar’s construction, and that knowledge of it via proper notice would have brought them en masse to the zoning board of appeals hearing where it received approval. 

Many of Allegaert’s co-plaintiffs came to the Dukes County Superior Courthouse on July 17 to watch a hearing before Judge Ricciardone. Eight days later Judge Ricciardone handed down his assessment of what he heard at the hearing and what the attorneys submitted to him in writing. 

His denial of the plaintiffs’ claims was unsparing and categorical. 

“Their bare assertions as to a total lack of notice sent ‘to any address’ carries no more weight, and arguably less, than the detailed affidavit of Lisa Morrison. The long-term administrative assistant to the ZBA averred in detail her full compliance with G.L.C. 40A [paragraph] 11 through mailing same to each of the realty trust and LLC off-island addresses listed in town records as actual owners,” Judge Ricciardone wrote in his decision. “Further, the plaintiffs show no evidence to refute the asserted publication of such notice in the Vineyard Gazette and the Town Hall, the two other forms of notice required by the statute.”

In court Dan Larkosh, the plaintiffs’ attorney, argued the bar would be an eyesore and that the bar violated the special permit it was operating under. Judge Ricciardone found otherwise.
“[T]he plaintiffs appear to misstate the actual siting of the new bar as infringing on the ‘great lawn’ adjacent to the pool area, and/or being visible from the plaintiffs’ properties.” he wrote. “They also present no actual evidence as to the feared increased noise and disturbance regarding the new structure, which is actually smaller than the previous one, and subject to the same limitations on use that have been in place since the special permits of 1990 and 1992 (e.g., a closing time of 9:30 pm).” 

Judge Ricciardone went on to write that the plaintiffs “are anxious of generalized, future diminution in the use and enjoyment of their homes based on operation of the relocated pool bar that has yet to begin.” He ruled that injunctive relief cannot be granted “based merely on anticipated harm.”

Judge Ricciardone also shot down the plaintiffs’ argument for monetary damages. 

In an email to The Times, Harbor View Hotel attorney Kevin O’Flaherty wrote that Edgartown has “provided notice that it will be filing a motion to dismiss.”

Town counsel Michael Goldsmith confirmed Larkosh has been served a motion to dismiss and will have an opportunity to respond to it. 

“We’re disappointed, obviously,” Larkosh said. “But it’s not over. We’re going to continue to litigate this issue with the Harbor View and with the town.”

Larkosh said a hearing is scheduled for July 31 regarding an appeal of the pool bar building permit he filed on behalf of his clients.

Asked Friday if he had authorized the Harbor View to continue construction of the pool bar, Edgartown inspector Lenny Jason said, “Not only did I authorize them to continue, but I gave the final inspection today.”

Updated to correct date of building permit hearing.