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SOUTHWEST HARBOR — On July 20, the Appeals Board ruled there was good cause to hear the Selmis’ appeal of a December 2024 permit for a two-story, three-bedroom guest cottage at 72 Clark Point Road.
A previous appeal by other neighbors was not heard and had been considered untimely because it was submitted after the window allowed for appeals within the town’s ordinance.
This appeal, though later, will be heard, the board decided because Daniel and Ann Selmi argued that they were not notified that the code enforcement officer could issue a permit for the building. Because they were not notified, they argued, they could still appeal.
The appeals board agreed. The rest of the appeal will be heard later this summer.
Justin Podjasek’s project at 72 Clark Point Road is to build a $750,000 guest house where a greenhouse once stood. In 2012, the property, which was a larger lot owned by one property owner, was granted a building code variance from a 15-foot-setback requirement. Setbacks in town zoning rules determine how close structures can be built to property lines.
Opponents to the project say that the variance should not have been granted.
“The permit relies on a variance for a greenhouse issued in 2012. However, before the sale of 72 Clark Point Road to the present owner, the greenhouse had been removed from the property pursuant to a request approved by the Town of Southwest Harbor,” the Selmis argue in appeal documents. “The permit could not rely on a variance for a previously removed structure to justify a new, entirely different use.”
Construction on the project has begun.
The board heard two appeals on July 30 in an afternoon meeting at the fire station that saw approximately 35 people attending.
Both of the two items on the board’s agenda had to do with properties on the Clark Point Road.
The second decision about 72 Clark Point Road and the timeliness of the appeal created more discussion.
The appeals board had determined on June 4 that the other neighbors, the MacIntoshes, direct abutters to the 72 Clark Point Road project, did not appeal the build within the 30 days required by the town. The building permit was issued December 18, 2024. At least some abutters were notified on December 9. The MacIntoshes’ appeal was filed in May.
The board had found at that early June meeting that the MacIntoshes’ application for the appeal was more than 130 days after the permit approval; the town’s board of appeals ordinance requires it to be filed within 30 days. During the July 2 meeting the Macintoshes stressed that they attempted to communicate with the town in February but were not aware that they could file an appeal.
The board reconsidered that decision in July and denied to hear the appeal because of timeliness again.
Things went differently for the Selmis who argued this week that they were not sent a notice about the project and therefore couldn’t have a timely response. Since they do not winter at their Southwest Harbor property, they reasoned, they could not know the construction was occurring.
At the July 30 meeting, Ted Fletcher, the board’s secretary, asked for more timely submittal of evidence and information presented to the board for its meetings.
Soon after, appeals board member Alyson Meiselman requested a change in procedure.
“I think that, as a general rule, we ought to have things subject to the penalties of perjury and under oath rather than a myriad of opinion,” Meiselman said.
“I’m not comfortable with that. I don’t know that we have the legal standing to require that,” Chair John Izenour said.
The town’s attorney responded that perjury applies generally to court settings. The board as part of its fact finding may have people take oaths or affirmations, he said.
“Generally speaking, for any appeal, the board should follow…if it has certain customs, it should follow those consistently,” he said.
He added that any requirement to be sworn in should be for the appeal currently before the board so that the parties involved could object if they wanted to.
At the beginning of the meeting, Meiselman’s motion died for a lack of a second, which is a requirement for votes.
When it came up again for the 72 Clark Point Road discussion, the town’s attorney added, “So, I will say you have potentially the authority to request that a person be sworn. My advice to you is that you do not have the authority to request that someone be sworn under penalty of perjury because this board is not authorized by law to do that.”
He later advised the board that its members could “judge the credibility of what you hear from the code enforcement officer without compelling him to swear on oath.”
Later in the meeting, Meiselman presented a photo of the 72 Clark Point Road property, which the property owner’s attorney Andrew Hamilton objected to.
Meiselman said that Hamilton had opened the door to the photo’s presentation. Hamilton disagreed.
“So, we’ve got a member of the Board of Appeals who’s purporting to introduce an exhibit to refute evidence in this case without acting in a deliberative capacity. She found the photo as one that she has had in her possession for a while. I think there’s a question of bias in my humble judgment as to whether Ms. Meiselman can be objective as to the timeliness question. What she’s doing is she’s trying to introduce an exhibit as a member of the board. I’ve never seen this before. Never ever,” Hamilton said.
The photo involved the greenhouse on the property, which is part of the arguments of the appeal.
“This document shows a demolition, or a claimed demolition, in April of the greenhouse. And this one shows, pre-demolition, the greenhouse existing. Is that correct? You can see the greenhouse. And you can see that it’s been removed,” Meiselman had said when she stood and presented the documents to the town’s attorney.
The board determined that this was evidence being submitted by an appeals board member and then voted to recuse Meiselman.
Izenour said that Meiselman has gone beyond the duties of a member of the board and potentially set the board’s process and any ruling it may have in jeopardy.
Fletcher said the photo in this context didn’t rise to the level of bias.
The board voted to recuse Meiselman.
“It brings me no joy whatsoever, that I had that vote. I really appreciate your passion in doing this and I know where it’s coming from,” Izenour said.
Much of the discussion focused around the files, the building permit, and whether there had been notice sent to abutters. During discussion, Code Enforcement Officer John Larson said that he issues 150 permits a year and explained parts of the filing process and notification process.
The appellants said that they only learned about the project when they returned to the island in early June. They also included a list of other abutters who said they had not received notice of the project’s approval.
When an appeals board member asked why the project was a big deal to them and the neighbors, Daniel Selmi said for most of the people the worries came when they arrived in town for the season. Many of the property owners are summer residents.
“When people saw it, that’s when it became a big deal…. That’s when it became a big deal, when they saw the design,” he said.
The board determined that there was sufficient good cause to grant a timeliness exemption and allow the appeal to be heard.
90 CLARK POINT ROAD
The other case focused on a property a bit further down the road at 90 Clark Point Road. That property is owned by Chris and Anne Hopkins.
The plan is for a single-story 131-square foot mudroom addition to the existing main house and the renovation of existing bedroom wing in its current location.
Attorney Stephen Wagner said that he had three arguments for the appeal by George Swetz and Gigi Girgis but focused on two during the proceedings.
His first argument was that the planning board made a mistake when it decided that only the shoreland zoning ordinance (SZO) applied to the project and not the town’s land use ordinance.
“We end up with absurd results if we simply ignore the land use ordinance,” Wagner argued.
Wagner wanted the board to vacate the permit because he worried that the planning board would feel “handicapped” by its previous approval and needed a fresh start.
His second argument was that the planning board should not have granted the SZO permit “because the application seeks to unlawfully expand a nonconforming accessory structure that is located partially within the water body setback,” which he believed violates two sections of the SZO.
The property owners were represented by Dan Pileggi and Michael Wayne who was the project architect for Hopkinses.
“It has zero impact whatsoever on the neighbor who has appealed,” Pileggi argued.
Fletcher asked how an enclosure of the deck in the middle of the property could be a dramatic change of use.
The lot coverage is a reduction, Pileggi said.
“They took the most restrictive standard and they applied it,” Fletcher said.
The appeal was denied.
The Bar Harbor Story is generously sponsored by Rick Osann Art.
Photos: Shaun Farrar/Bar Harbor Story
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