Harbor View neighbors make appellate gains

WilmerHale upends Goulston & Storrs court victories.

Neighbors who have taken issue with a new pool bar at Harbor View Hotel recently made legal gains in the Massachusetts Appeals Court. — Rich Saltzberg

Neighbors of the Harbor View have changed the legal trajectory of their dispute with the Harbor View Hotel with a recent decision made by the Massachusetts Appeals Court. The ongoing legal battle has to do with a replacement pool bar approved through a 2019 Edgartown zoning board of appeals (ZBA) special permit.

Neighbors of the hotel have alleged they never received proper notice that the ZBA was considering a special permit for the pool bar, and pushed that stance into superior court, where they lost. The same neighbors alleged the former Edgartown building inspector, in his role as zoning enforcement officer, didn’t enforce special restrictions previously placed on the hotel. The neighbors lost that argument in superior court too. Unsatisfied with the superior court rulings, the neighbors appealed, and their legal fortunes improved. The bulk of the decisions handed down by the appeals court were in favor of the neighbors. 

The appeals court judgment comes after more than two years of conflict between the hotel and its neighbors through high-powered Boston firms and their high-powered litigators. The hotel is represented by Kevin O’Flaherty of Goulston & Storrs. The neighbors, led by abutter Lynn Allegaert, are represented by Felicia Ellsworth of WilmerHale. Both lawyers have appeared before Edgartown boards and in Dukes County Superior Court. So too has veteran municipal attorney James Lampke, special town counsel for Edgartown. The town is named as a defendant in the neighbors’ suits and appeals; however, it hasn’t made an appearance in the appeals process. 

“The town has been briefed on the most recent appeals court decision by outside counsel, and hopes all neighborhood parties can come together to reach a consensus that avoids further litigation,” Edgartown town administrator James Hagerty emailed.

On the subject of notice, the appeals court found the 20-day window the hotel argued that the plaintiff neighbors had failed to meet in order to advance their complaint was the wrong time window — partly. The appeals court found the neighbors in fact had 90 days to advance their complaint of a defect in notice — that nobody informed them the ZBA would hold a hearing on a special permit for the pool bar. The court found the neighbors had brought suit about the issue of defective notice in a timely manner, according to a written decision. 

“Once this is understood, it is evident that the judge erred in making factual findings and credibility judgments at the motion to dismiss stage regarding whether the town in fact provided the required notice,” a decision states.

However, the appeals court found that 20 days was indeed the cutoff point for neighbors’ claims that the special permit itself was faulty. Dismissal of that notice claim by the superior court was therefore justified.

The appeals court also weighed in on a two-pronged argument made by the neighbors in regard to enforcement action — whether or not the special permit for a new pool bar disallowed food and beverage service, and whether or not a patio area was contemplated under the special permit for use as an area to eat and drink. 

The appeals court disagreed with the neighbors’ argument that the 2019 special permit allowed a new pool bar to be built, but didn’t allow for food and beverage service. 

“To the contrary,” a decision states, “we agree with the building inspector, the board, and the judge that the special permit to construct the new pool bar implicitly allowed service of food and beverages at the new bar.”

The court saw the patio area in another light, however: “The complaint alleges that food and beverages are being provided and consumed in ‘a patio area of approximately 2,275 square feet with fire pits, approximately 60 lights, seating for approximately 50 patrons, and standing room for approximately 50 more.’ It further alleges that this patio area creates excessive light, attracts a large number of patrons, and results in excessive noise.”

The appeals court found the 2019 special permit does not contain permission to serve and consume food and beverages in the patio area.

Since the building inspector made a decision on the patio area prior to the ZBA taking up the matter, the appeals court ruled the claims against the patio have special survivability and shouldn’t have been dismissed by the superior court. 

The appeals court ruling would normally send the complaints back to the superior court. However, O’Flaherty has filed a motion to reconsider with the appeals court. That motion states in part, “The court’s reversal of the superior court’s dismissal of the enforcement action was based on misapprehension of factual and legal issues. The court also overlooked facts and law that justified the superior court’s dismissal of the defective notice claim.”

O’Flaherty declined comment on the appellate ruling or his motion to reconsider.

Ellsworth said in a “properly noticed hearing,” the neighbors would be able to voice their views on what they found problematic with the pool bar. She also said the appeals court made it clear that “there’s nothing in the special permit that allows this extensive patio area,” and the superior court was wrong to dismiss enforcement action claims on that subject.


  1. Wow reading this article you almost have to be a lawyer to understand what’s going on. But as a non-lawyer it seems to me the neighbors are definitely not in my backyard people and they moved there long after the hotel was built. Basically the hotel moved the pool bar from one side of the pool to another and that is a problem. Why can’t we all just get along I am grateful for all the improvements to the hotel which continues to be the finest on the island.

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