Pool bar alcohol license contested

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Neighbors who’ve sought legal action against the Harbor View Hotel for alleged violations of special permits and a building permit pertaining to a pool bar endured setbacks in Dukes County Superior Court and at the Edgartown zoning board of appeals last week.

On Wednesday, Dec. 11, Judge Robert Rufo dismissed a challenge to the pool bar’s building permit. A few hours later the ZBA unanimously denied a bid to compel the building inspector to take action against the hotel for alleged special permit violations. 

On Monday, the conflict visited the selectmen’s doorstep at a hearing on the three alcohol licenses held by the hotel. The focus of the hearing was the pool bar alcohol license, as opposed to two other licenses for the interior of the hotel — specifically whether the hotel got town license approval before building and opening the bar. After attorneys laid out arguments for both sides, and neighbors gave commentary, the chair, Margaret Serpa, closed the hearing without taking a vote. 

Hotel attorney Kevin O’Flaherty told the board the pool bar is not easily accessible to the public and “not adjacent to a public way,” but hundreds of feet inside hotel property. Despite a 120-foot move, he said the bar remains in a green area historically “part of the pool area …”

“Basically our position is the new pool bar is in the same area it’s always been … What is the pool bar? It’s a pool bar. As Bill Belichick would say, ‘It is what it is.’”

O’Flaherty said the pool bar has been permitted since 1992. “I think, Ms. Serpa, you were there, so you would know,” he said.

O’Flaherty said issues raised by the neighbors “are claims in search of facts to support them,” and are all zoning issues, with no bearing on the alcohol license of the pool bar. 

As to why it took several months for the hotel to apply to the board for changes to the license, O’Flaherty said, “It isn’t true we delayed for some nefarious reason.” He indicated legal protocol dictated otherwise. And despite the delay, once it was aware of the situation, the Alcoholic Beverages Control Commission (ABCC) “didn’t come and shut the pool bar down.”

O’Flaherty sought to debunk the notion that the pool bar was “incongruous in a residential area” and a “pig in a parlor” by saying it was “pre-existing,” and so too was the 1891 hotel.

“I will submit that all of the neighbors came to the neighborhood after the hotel,” he said. 

Attorney Felicia Ellsworth argued the new structure the hotel built is no longer a pool bar but an outdoor restaurant and bar. She said that while the structure itself was slightly smaller than the old pool bar, the capacity of the new structure, given its serving area, is substantially greater than the old pool bar. Moreover, she said, the bar is no longer in the fenced-in area surrounding the pool, and she questioned why it could be called a pool bar in such a circumstance. 

She balked at O’Flaherty’s reasoning about why they were before the board, and the timing of the hotel’s appearance, essentially saying the hotel put the cart before the horse and served alcohol this season prior to getting the requisite permission from the selectmen. 

“The hotel is here because they recognize that they need approval from this board in order to serve liquor from this altered premises,” she said. “That’s what the rules and regulations of the town require. It also requires prior approval by the board for alteration of premises … [I]t makes no sense to require prior approval and not seek that approval until four months after the building permit has issued.” 

Ellsworth said the pool bar building permit was issued May 31, but the hotel applied to the selectmen for an alteration of premises in October, after some of her clients complained to the ABCC. 

Counter to O’Flaherty’s argument, she said, the question before the board has nothing to do with zoning and everything to do with the license itself: “The question before this board is whether a liquor license for this altered premises … is to the benefit of the town of Edgartown or not?” 

Once the lawyers had spoken, the board heard from several neighbors, including Geoff Carboolad, who said the hotel’s stance and O’Flaherty’s comments had “outraged” him. Carboolad, who said he’d been “part of the community since 1970,” called out O’Flaherty for patronizing arguments: “O’Flaherty thinks that we lack all form of intelligence, we’re complete fools …” 

Among other things, Carboolad took issue with the portrayal of the pool bar as small, the noise it generates as “a little bit,” and that the surrounding buildings buffer sound. 

“We’re looking to be treated the same way you would expect to be treated,” he said to the selectmen. 

Carboolad later described himself a “infuriated.” He and his fellow neighbors refuse to be “bullied” by the Harbor View Hotel, he said. He called the ZBA and courtroom defeats suffered by the neighbors as losses by “technicality,” and that it was implausible to think the neighborhood’s lack of attendance at the initial ZBA hearing constituted acquiescence to the pool bar.

“Because none of us came to the ZBA board, none of us opposed this? And all of a sudden we woke up one morning and we all got together and said Hey, Jesus, we’ve got to fight this today? That’s not what happened. What happened is we got notified after the fact. And then we had to fight … And the reason it’s here and the reason they’re fighting so hard is because they want to increase the size of the bar, the amount of people, and their income at our expense.”

Carboolad warned the board not to “entitle” the hotel, that if “after they get caught not applying for their liquor license,” they aren’t called out, they will be emboldened to do “anything.” 

Neighbor Lynn Allegaert, lead plaintiff, said she had been next to the hotel for 23 years. 

“During those 23 years, the hotel has changed owners five times, and managers more frequently. There have been issues of noise and nuisance over the years, but they’ve always been resolved amicably, due largely to the existence and enforcement of the 1990 and 1992 special permits governing the outdoor activity at the hotel.”

Allegaert went on to say she met Bernard Chui, owner of the hotel through Upland Capital Corp., shortly after he bought the hotel. 

“At Mr. Chui’s request, I reviewed his plans for the hotel renovation,” she said. “Also at his request I wrote letters of support for the renovation plans to the town boards whose approval he needed.” Allegaert went on to say, “[I]n those plans the pool bar remained small, out of sight, and nestled against the hotel, with a large section of the building blocking the view of the pool from my property …” She noted, “[N]owhere” in these plans was there evidence the pool bar would be moved, or that it would become a “2,300-square-foot” outdoor saloon. He said neither Chui nor hotel staff mentioned anything about expanding the pool bar, or of “three fire pits, and 60 lights, 20 yards away from my fence line.”

Nobody spoke in favor of the hotel’s liquor license. Selectman Arthur Smedbeck later sought to help settle the dispute by asking O’ Flaherty if the hotel couldn’t just relocate the pool bar back to its original spot inside the pool area, where the sights and sounds it allegedly generates would be lessened. O’Flaherty said that was not doable because of the expense the hotel incurred constructing the new pool bar. Serpa closed the hearing without a vote. On Tuesday, town administrator James Hagerty said a vote hasn’t been scheduled yet.