BAR HARBOR — Both sides in a dispute over a hotel company’s planned expansion of an apartment complex got a partial win Tuesday when the town’s Board of Appeals partially overturned the Planning Board’s approval of the project. The application will be sent back to the Planning Board.
The apartments are used for employee housing by hotel company Ocean Properties, mostly for seasonal workers. The property and buildings are owned by Bar Harbor Apartments (BHAPTS) which is controlled by Ocean Properties.
The back-and-forth over the project has tapped into ongoing tensions in the town over year-round housing and seasonal employee housing (new zoning rules for the latter are set to go before voters in June).
The task before the Board of Appeals was to determine whether the Planning Board’s decision was “clearly contrary to the specific provisions” of the town’s Land Use Ordinance.
On seven specific points raised by the appellant, including whether the project had sufficient buffering and whether seasonal employee housing counts as a residential use, the Board of Appeals upheld the Planning Board’s findings.
“Everything is residential, except when it’s not,” board member Michael Siklosi said. He said the ordinance specifies commercial uses and transient accommodations (defined as stays of less than 30 days). “If it ain’t those two, it’s residential,” he said, “whether it’s six months, six years or 60 years.”
The board did, however, disagree with BHAPTS’ calculations of how many units are allowed on the property, known as base unit density. There are 16 apartment units in the existing apartment complex, and the project as approved by the Planning Board includes 18.
For that reason, the application will be remanded to the Planning Board.
The application used a planning construct called a Planned Unit Development (PUD), which allows developers to increase density in exchange for other desirable community impacts such as building new affordable housing. It also counted on a grandfathered status to be able to keep the 16 existing units, despite the fact that the density rules (minimum area per family) have changed since they were built in the 1980s.
“For me it’s like double-dipping,” Appeals Board Chair Ellen Dohmen said. “I can see both sides of (allowing) 16 or 17 (units), but I absolutely can’t see how you get to 18.”
The project approval process has already stretched more than a year and a half.
BHAPTS held neighborhood meetings to discuss the project with neighbors in September of 2018. The Planning Board held hearings on the site plan application in December 2018 and January 2019. It approved the project in a written decision issued in February.
Elizabeth Mills, whose property directly abuts the project, appealed the Planning Board’s decision in March of last year. The Board of Appeals dismissed the appeal in April, on the grounds that the appeal application was incomplete.
In May, Mills filed a Superior Court complaint challenging the board’s decision. The court had not yet acted on the matter in August, when the town’s Planning Department issued a building permit for the project for concrete foundations for the planned new buildings.
So in October, Mills also asked the court for a stay delaying construction activities until her court complaint was resolved.
Justice Ann Murray granted the stay in a December decision, which also remanded the application to the Board of Appeals, finding Mills had met all requirements in filing the appeal and instructing the board to hear the appeal on the merits.
Representing BHAPTS at the hearing was attorney Andy Hamilton of the firm Eaton Peabody and landscape architect Perry Moore. Representing Mills was Charles Gilbert of Gilbert and Greif. Gilbert’s partner Arthur Greif was active in opposing the project as a resident during the Planning Board process and was later engaged to represent Mills. Greif’s wife Donna Karlson wrote a letter read into the record at the meeting by resident Jake Jagel, excoriating Ocean Properties as being “more equal” under the law than residents and other businesses.