Battle over hotel pool bar continues

After hearing arguments in Dukes County Superior Court Monday afternoon over a pool bar at the Harbor View Hotel, Judge David Ricciardone stayed all discovery in the consolidated case for 21 days. The stay appeared in part geared to allow the judge time to assess the reasoning and supportive case law for a raft of contentions from the litigants, key among them whether the case should be dismissed or whether the entire zoning board of appeals, the building inspector, and other town officials should be deposed. 

Harbor View Hotel neighbors Lynn Allegaert, Mark Dalton, Hume Steyer, James Swartz, Joseph Smith, Louise Neuhoff, Geoff Carboolad, Richard Zannino, Anna Zannino, Edwin Brooks, and Granville White have sued the hotel and the town of Edgartown for alleged failure to properly notify them of a zoning board of appeals hearing for a pool bar relocation on hotel grounds, for alleged violations of special permits governing that pool bar, and to overturn the building permit issued for the pool bar. Edgartown attorney Dan Larkosh and Boston attorney Felicia Ellsworth appeared for the plaintiffs. 

Both the town and the hotel allege the notices in question were done properly, the special permits haven’t been violated, and the building permit is lawful. Boston attorney Kevin O’Flaherty appeared on behalf of the hotel, and Hingham attorney James Lampke appeared on behalf of Edgartown. 

The last time the case came to the Dukes County Superior Courthouse was on July 17, when Judge Ricciardone heard arguments for an injunction against the pool bar, and many people who live near the hotel came to watch the proceedings. On July 25, Judge Ricciardone denied that injunction. On Monday, only a handful of neighbors were present, along with Edgartown building inspector Lenny Jason. 

Ellsworth told Judge Ricciardone the notices issued by Edgartown were “defective” because, among other reasons, several neighbors didn’t receive them and Edgartown had cited the wrong zoning bylaw in those notices. Ellsworth said video and audio recorded at her clients’ homes serves to bolster their claims of special permit violations at the pool bar site, and disturbances caused from that area. Ellsworth cited Fish v. Building Inspector of Falmouth and Kasper v. Board of Appeals of Watertown, among other case law. She argued for further discovery in the case.

O’Flaherty said the notices sent by Edgartown “check[ed] every box” and provided information beyond what was required. He said the plaintiffs’ arguments that the building permit is invalid are flimsy because they do little more than work off a foundation that the special permits are invalid. He told Judge Ricciardone nothing the plaintiffs have presented rises “to the level of a nuisance.” O’Flaherty cited Sweenie v. A.L. Prime Energy Consultants and Zuckerman v. Zoning Board of Appeals of Greenfield, among other case law. He argued for dismissal of the case. 

Lampke said the plaintiffs have already “subjected” Edgartown to a lot of discovery, especially the production of documentation. He described requests for Edgartown officials and administrative staff to provide such documents as “extremely onerous and disruptive.” Lampke told Ricciardone the plaintiffs’ discovery requests, including requests to depose town hall workers and an elected board, came across as heavy-handed, especially because of the type of case before the court. Lampke asked Ricciardone to stay discovery until a judgment can be made as to whether the case will survive the pending motion to dismiss. 

Judge Ricciardone declined to order an open-ended stay, and resolved that one limited to three weeks was the fairest way to proceed. He told the lawyers that while new discovery is temporarily off the table, everything generated by discovery to date “remains valid and in play.”

Another hearing on the case is tentatively slated for Oct. 28.