BAR HARBOR — Hotelier Tom Walsh’s West Street Hotel was approved by the town in 2010 and built the following year. But competitor David Witham is still trying to have it declared illegal.
Witham has been fighting unsuccessfully to have Walsh’s permit for the hotel revoked since before the building was constructed. His efforts have twice been shot down in Maine Superior Court. In his latest attempt to kill the new hotel, Witham has turned to the state’s highest arbiter of the law, the Maine Supreme Judicial Court (SJC).
In a set of documents filed with the SJC earlier this year, Witham’s attorneys John Bannon and John Shumadine present arguments familiar to anyone who followed Walsh’s year-long battle with the planning board here to gain approval for the hotel. They argue that the building has more stories than allowed by zoning and that it does not have enough parking to meet land use requirements.
Witham’s arguments about the number of stories in the building match those used by planning board members when they initially denied approval for the hotel in 2010. According to the land use ordinance (LUO), buildings in the downtown business zone, where the hotel is, must be no taller than 45 feet above median grade and may contain no more than four stories of “habitable space.” But Witham maintains that the building contains five stories of such space when the rooftop deck and pool are included.
In a court response filed on May 30, however, Walsh’s attorneys William Devoe, Andrew Hamilton and Jonathan Pottle counter that the pool deck of the hotel constitutes a story of “occupiable space,” not habitable space, leaving the building completely within the limits set out by the LUO.
The argument over how to define the rooftop deck remains in play because the LUO does not define habitable nor occupiable spaces. Walsh’s interpretation of the LUO is based on definitions included in the International Building Code (IBC). The IBC says that “A hotel pool area, fitness room and locker rooms are not considered a habitable space, these are occupiable spaces,” Walsh’s attorneys write.
Witham, however, argues that there is no clear direction to use the IBC for definitions in this instance, and in fact, plain language is the correct arbiter of what should be considered “habitable space.” Under that interpretation, habitable space “would be areas that are useable by invitees to the building, as opposed to areas…that are consumed entirely by machinery, mechanical apparatus, ducts, conduits and other utilities,” Witham’s attorneys state.
Witham also claims in his appeal to the SJC that the hotel does not have enough parking spaces. This is because, first, 18 spaces on the property are supposed to be used for the Harborside Hotel across the street under the terms of a previous agreement. Second, the filing states, the shops that line the ground floor of the hotel must each have a certain number of parking spaces.
Walsh’s attorneys deny those arguments entirely stating that the parking plan for the Harborside was changed in 2005 eliminating the need for the 18 spaces. They also claim that the shops are all considered “accessory uses” to the hotel and thus do not require designated spaces.