The long-running litigation between Edgartown’s Harbor View Hotel and a group of neighbors over an expansion project at the Hotel continues after the Massachusetts Appeals Court partly reversed the Superior Court’s decisions dismissing the neighbors’ challenges to the Hotel’s pool bar and patio in Allegaert, et al. v. Harbor View Hotel Owner LLC, et al., No. 20-P-828 (Nov. 17, 2021). The Superior Court dismissed two lawsuits brought by the neighbors – one action challenging the special permit allowing the Hotel to relocate its bar (“Special Permit Action”), and another action challenging the failure of the building inspector to take enforcement action against the Hotel for selling food and beverages from and near the bar (“Enforcement Action”). The neighbors appealed.

Anyone seeking assistance with the appeal of the issuance of a building permit or with a zoning enforcement action is well-advised to consult with an attorney to discuss the attendant facts and the relevant procedure in order to avoid any fatal missteps.

The Special Permit Action.
In March 2019, the Hotel applied for a special permit to replace the existing pool bar and construct a new pool bar in a different location. The Zoning Board set a hearing for May 1, 2019, and the Zoning Board’s assistant averred that she mailed notice of the hearing to the parties-in-interest as identified by the town’s assessor, published notice in the Vineyard Gazette, and posted notice of the public hearing at the town hall. The Zoning Board subsequently voted to grant the special permit and filed a decision with the town clerk on May 3, 2019.

On June 21, 2019, the neighbors commenced the Special Permit Action 49 days after the Zoning Board’s Decision was filed, alleging both defects in notice and that the special permit was wrongly granted on the merits. M.G.L. c. 40A, § 17 requires an appeal of a decision on a special permit application to be filed within 20 days of the filing of that decision with the town clerk. Nonetheless, pursuant to M.G.L. c 40A, §17, a special permit decision may be appealed for matters relating to defects in procedure or notice by filing a lawsuit within 90 days of the filing of the decision. Here, the Hotel and the town interpreted the statute as establishing two different statutes of limitation for challenging a special permit on the merits – 20 days ordinarily, and 90 days if the aggrieved party can show a notice defect. Citing to Cappuccio v. Zoning Board of Appeals of Spencer, 398 Mass. 304 (1986), the Appeals Court held that the statute provides different statutes of limitation for two different types of special permit challenges: (1) 20 days for a challenge to a special permit on the merits; and (2) 90 days for an appeal seeking to invalidate a special permit because of a defect in notice.

Here, the Appeals Court affirmed the dismissal of the claims relative to the merits as they are time barred. With respect to the neighbors’ defective notice claims, which were filed within the 90-day appeal period, the Appeals Court noted that the underlying complaint alleged that none of the eleven plaintiffs received notice of the special permit application, public hearing, or decision. Accepting such allegation as true for purposes of a motion to dismiss, the Appeals Court held there was an adequate basis to infer that notice was not mailed and dismissal for failure to state a claim of defective notice was not warranted. The Appeals Court also held that it will be for the fact finder to determine whether there was a defect in notice. As such, the Appeals Court vacated the dismissal of the claims relative to defective notice.

The Enforcement Action.
In August 2019, the neighbors requested that the building inspector enforce the zoning bylaws, claiming that the Hotel’s new pool bar was unlawful because it went beyond the scope of the special permit. The building inspector denied the request, the Zoning Board subsequently upheld his decision, and the neighbors timely appealed the Zoning Board’s decision in Superior Court.

On appeal, the neighbors alleged that the 2019 special permit allowed for the construction of a new bar, but did not allow for the service of food and beverages at the bar. The Appeals Court agreed with the Superior Court, holding that the special permit implicitly allowed for such service. The neighbors also alleged that the Hotel is serving food and beverages in a patio area of approximately 2,275 square feet when the special permit authorized only a 176 square foot pool bar. The Superior Court dismissed the Enforcement Action on the basis of claim preclusion, finding that the claims were in essence an effort to appeal from the 2019 special permit decision. The Appeals Court disagreed, finding that this claim could not have been advanced in the Special Permit Action as that action was decided before the Zoning Board affirmed the building inspector’s decision. Accordingly, the Appeals Court vacated the decision relative to the consumption of food and beverages outside of the pool area and bar as set forth in the special permit.

The bitter dispute between the historic hotel and the residents of the surrounding Starbuck’s Neck neighborhood continues as the claims are sent back to the Superior Court to be heard again. This decision serves as a reminder of the critical importance of timely appealing a zoning board’s decision, and the additional time available for procedural defects if an appeal is not brought within the 20-day appeal period. Anyone seeking assistance with the appeal of the issuance of a building permit or with a zoning enforcement action is well-advised to consult with an attorney to discuss the attendant facts and the relevant procedure in order to avoid any fatal missteps.

Click here to view a copy of the Allegaert, et al. v. Harbor View Hotel Owner LLC, et al., case.