BAR HARBOR — A property owner seeking to block a planned expansion of a West Street Extension apartment complex got a win last week when a judge ordered that her appeal of the building permit be sent back to the town Board of Appeals.
The apartments are used for employee housing by hotel company Ocean Properties, mostly for seasonal workers. The apartments are owned by Bar Harbor Apartments (BHAPTS), LLC, which is controlled by Ocean Properties.
According to the decision issued Dec. 2 by Justice Anne Murray in Maine Superior Court, property owner Elizabeth Mills is entitled to appeal the Planning Board’s decision to allow an apartment expansion project at an abutting property. The court also granted a stay of “any further construction activities by BHAPTS pending resolution of the appeal.”
Mills filed the lawsuit against the town and BHAPTS in May after her appeal of the approved 18-unit employee housing project, filed on March 19, was dismissed by the appeals board in April.
The judge remanded the case back to the appeals board to consider, saying they had dismissed the case improperly. Murray wrote that the appeals board erred in dismissing Mills’ appeal based on incomplete transcripts.
“When read as a whole … the ordinance was intended to create a method where the record of appeal is developed by relying on an adversarial process,” the decision states. “In this scheme, both the appellant and any interested parties are asked to provide the Board with parts of the record that they intend to rely upon but … no party is required to provide a complete record.”
According to Town Manager Cornell Knight, the appeals board will consider Mills’ appeal at a Feb. 11, 2020 meeting, as a result of the court ruling.
Additionally, the court granted a stay of construction on the findings that Mills would “suffer irreparable injury if the injunction is not granted” based on BHAPT’s plan to remove a buffer of trees and construct new buildings 10 feet from Mills’ property line.
Mills filed a motion requesting the stay in October after she “observed circumstances … that suggested construction was commencing,” including tree removal, in late September, according to court documents.
“There is not doubt that the construction of three new multi-story residential buildings along Ms. Mills’ property line along with the destruction of the trees would increase noise and light coming onto Ms. Mills’ property from the BHAPTS property, and would interfere with her quiet enjoyment of her property,” Murray wrote.
“Whether as yet unknown temporary seasonal workers would trespass and litter on Ms. Mills’ property is unknown, but there is evidence that noise, trespassing, and littering of liquor bottles and hypodermic needles on Ms. Mills’ property increased after BHAPTS acquired the property and converted it into temporary worker housing.”
The court also found Mills’ potential injury to outweigh any harm to BHAPTS caused by a delay in construction.
“The project in question will house an additional ten seasonal workers,” Murray wrote. “While BHAPTS might have to find an alternative location to house these ten workers … BHAPTS will not be in any worse position than it has been in for the preceding tourist seasons.”
According to Eben Salvatore of Ocean Properties, the court decision will set construction back.
“Instead of building over the winter, we have to wait and build over the summer,” he told the Islander.
“It’ll certainly displace some people. They’ll have to be housed elsewhere, if at all,” Salvatore said, which he said would likely require more transportation on and off-island.
Transportation, he said, is provided to offsite employees through a combination of Ocean Properties shuttles, free Island Explorer buses when available and a private contract with Downeast Transportation.
“What’s disappointing is the judge took what was un-factual as fact,” Salvatore continued, referring to the mention of noise, litter and alleged drug use. “It’s an inaccurate portrayal of our employees” not backed up by police reports or complaints from other neighbors, Salvatore said.
Dan Siemion, the onsite manager of BHAPTS’ employee housing development since 2012, wrote in a court affidavit, “I believe [the plaintiff’s] characterizations of the living conditions and behavior of our employees is untrue, unfair, and discriminatory.
“I have never witnessed behavior as they describe at this location in the seven years I have lived here,” he continued. “My young children play in and around the 16-unit property every day, and my wife and I have never been concerned for their safety on the property.”
“This decision accomplishes all three of the requests that Ms. Mills made to the Court,” wrote lawyer Art Greif in an email to the Islander. In addition to remanding the decision back to the appeals board and granting a stay in a stay in construction, “it finds the Ms. Mills is likely to prevail on her appeal that the Planning Board misread the LUO” when it approved the project, Greif wrote.
Mills’ decision does state, “There is a substantial possibility that Ms. Mills will succeed on the merits before the Board of Appeals,”
Originally approved by the Planning Board on Feb. 6, BHAPTS planned to turn 16 apartment units into 18 units. 16 units would be designated for seasonal employee housing, and two would be for year-round affordable housing.