Judge backs Edgartown in pool bar ruling

Updated Nov. 5

Judge David Ricciardone issued a ruling on Friday that in essence exonerates town boards and departments in Edgartown, but keeps the dispute alive between neighbors and the Harbor View Hotel.

Judge Ricciardone found that the town hadn’t erred in sending proper notice to abutters about a zoning hearing. Ricciardone sustained nuisance and negligent infliction of emotional damage claims made by neighbors of the hotel, albeit narrowly, as he indicated those pleadings crossed the threshold of “mere labels and conclusions, if only by a small margin.” The ruling effectively excuses Edgartown from the case, and leaves the hotel and the neighbors, both financial heavyweights, to fight it out. 

In his 12-page decision, Ricciardone made extensive references to Massachusetts case law. Citing Fifield v. ZBA of Cambridge and Zuckerman v. ZBA of Greenfield, Ricciardone made it clear he did not buy into the argument the Edgartown zoning board failed to give notice, or that zoning administrator Lisa Morrison did not perform her mailing duties. 

“It defies logic and credibility to conclude that a zoning administrator of more than 16 years’ experience would so completely fail, as the plaintiffs contend, in one of her most fundamental and important functions,” he wrote. “Ms. Morrison’s affidavit was unequivocal not only as to her customary practices in such matters, but also as to specific actions she took in this case. The evident receipt by the majority of interested parties presents strong evidence that the notices were mailed.”

Ricciardone’s decision indicated the timing and uniformity of the neighbors’ affidavits and amended affidavits relative to notices were unpersuasive. 

Citing Lummis v. Lilly, Judge Ricciardone wrote town permits are no shield for the defendants.

“The court agrees with the plaintiffs that as a matter of law, the permitting process does not immunize the Hotel from liability for nuisance and negligence that may flow from licensed activity,” he wrote.

In sum total, Judge Ricciardone dismissed an attempt by neighbors to overturn a pool bar special permit issued by the Edgartown zoning, and denied dismissal of tort claims made by those neighbors against the hotel. 

“The hotel is very pleased by the court’s ruling, which they feel was well-reasoned and very detailed,” Harbor View Hotel attorney Kevin O’Flaherty said. O’Flaherty went on to say the hotel has been a good neighbor, and wants to continue being a good neighbor. 

Edgartown counsel James Lampke couldn’t immediately be reached for comment. Despite the apparent victory, Edgartown administrator James Hagerty wasn’t overly chipper about the ruling. “There are no winners in this situation,” he said.

In a statement to The Times, Felicia Ellsworth, who represents neighbors Lynn Allegaert, Mark Dalton, Hume Steyer, James Swartz, Joseph Smith, Louise Neuhoff, Geoff Carboolad, Richard Zannino, Anna Zannino, Edwin Brooks, and Granville White, waxed optimistic about the ruling. 

“On Friday, Nov. 1, Superior Court Justice Ricciardone ruled that the lawsuit brought by a number of Edgartown homeowners against the Harbor View Hotel should proceed,” she wrote. “The hotel had asked the Court to dismiss the suit, which alleges that the Hotel improperly built a new outdoor bar and restaurant that has negatively affected the homeowners, but the court allowed the case to proceed, denying the hotel’s motion. The homeowners never received notice, as required, of the proposed new bar, and therefore did not appear at the zoning board of appeals’ hearing to oppose it. Despite this failure of notice, Justice Ricciardone held that the homeowners’ appeal of the Zoning Board’s grant of a building permit was untimely because they failed to appeal that decision within 20 days. The homeowners respectfully disagree with this ruling; having learned about the new bar for the first time after the expiration of the 20-day period, they could not have filed their appeal within this window. Importantly, however, Justice Ricciardone agreed with the homeowners that the hotel can be held ‘liable for nuisance and negligence that may flow from’ its activities at the new outdoor bar and restaurant, and the homeowners intend to vigorously pursue their claims that the hotel’s illegal operation of its new outdoor bar and restaurant, and the attendant noise, light, and traffic that result, has harmed them and the entire Edgartown community.” 

In a battle between litigants that both financially outweigh it, Edgartown hasn’t quite left the ring yet. It postponed two meetings relative to the case, a liquor license hearing and a zoning board hearing. A liquor license hearing for the pool bar will be held on Dec. 27, according to Hagerty. A zoning hearing on pool bar use will be held on Dec. 11.

Updated to correct the date of a liquor license hearing.