Court Fight Looms
Sep 18, 2025
The Bar Harbor Story is generously sponsored by The 1932 Criterion Theatre.
SOUTHWEST HARBOR—The Southwest Harbor Appeals Board has sent Justin Podjasek’s previously town-approved project at 72 Clark Point Road to build a $750,000 guest house on his lot where a greenhouse once stood to the town’s planning board.
The build on the property has been challenged by neighbors.
In June, the appeals board denied William and Martha ‘Kay’ MacIntosh’s challenge to the two-story, three bedroom guest cottage because the challenge was not filed within 30 days of the issuance of the building permit. It had been issued in December 2024.
The current appeal had been brought by Dan and Anne Selmi, who said that they were not informed that the building permit was issued and therefore, they could appeal despite the appeal being after that 30-day window. The Selmis do not winter in Southwest Harbor.
After many lengthy meetings that spanned months, the Southwest Harbor Appeals Board has decided that there was good cause to grant the Selmi appeal.
Attorney Andrew Hamilton, representing Podjasek, said that they would directly appeal the decision to court.
With the September 16 granting of the appeal, the project will now go back to the Southwest Harbor Code Enforcement Officer John Larson and the town’s planning board for review.
Because of its previous approval by Larson, construction on that guest house had already been started.
Part of the legal questions in the cases focus on the greenhouse that used to be on the property, which is within two feet of the MacIntoshes’ property. The area has 15-foot setbacks from property lines where structures can’t be built. However, in 2012, the town had granted a variance for a former resident who owned both the MacIntoshes’ property and the Podjasek property.
Opponents to the project say that the variance should not have been granted, but that wasn’t the main focus of the Selmi appeal, Mr. Selmi said at the August 27 meeting where he also worried about the process of submitting material for board members to review.
“Everyone has been asking us, ‘How in the world can this happen?’” Mr. Selmi said of the project.
The appeals’ hearings occurred at the town’s fire station and were also on Zoom and it was often standing room only.
Those opposing Larson’s decision to approve the permit said that the greenhouse was still considered a nonconforming structure and under town rules, it should have been looked at by the planning board, not the code enforcement officer.
At a prior meeting, earlier in September, the town’s appeals board indicated that it would likely grant the appeal directing the town attorney, Grady Burns, to draft proposed findings for the board to approve at the September 16 meeting.
The hearing was closed, but the proceeding was continued for another two weeks, until September 16 at 6 p.m. so that Burns could draft those findings.
On Tuesday, the board voted 4-1 in favor of the merits of the Selmi appeal. Scott Preston dissented. Then the board adopted the findings and authorized the chair to sign the decision within the next seven days.
Mr. Selmi said the situation was not too complicated because there are only a few main issues, which he said include: is the house an accessory use, does the new Maine law wipe out regulatory control, and how do shoreland zoning ordinances fit in.
“If I’m right on one of them, I get the appeal,” Dan Selmi said.
The Selmis’ July 1 written application for the appeal said that they were appealing the code enforcement officer’s approval of the project because they were not notified of the permit nor were many other abutters; that the permit relies on the greenhouse variance (granted in 2012), but that the greenhouse had been removed from the property prior to the application for the two-story building. What was left of the greenhouse were the frost walls, he said during the meeting.
“The permit could not rely on a variance for a previously removed structure to justify a new, entirely different use,” the Selmis wrote in the application.
The Selmis also argued in the appeal that the house being built doesn’t meet the variance criteria (nor was there a variance application post the greenhouses’s removal; that the house is a different use than the greenhouse and that they are not both accessory uses; that the house is a new use, which would require planning board review rather than CEO review; that the property is within the Shoreline Zoning Ordinance’s (SZO) jurisdiction and so that SZO should be applied to the application not just the town’s land use ordinance; that the CEO doesn’t have authority to grant the building permit under the SZO, which would have required planning board review and a public hearing.
“Under the SZO, the application for a permit for the house on 72 Clark Point Road could only be granted if the house met all dimensional requirements for a second residential unit,” the Selmis argued. “The new house does not meet those requirements if the greenhouse at 72 Clark Point Road was originally considered a nonconforming structure or nonconforming use under the zoning, the greenhouse was voluntarily removed by the prior owner. After its removal and the property thereafter sold, the greenhouse could no longer be considered a nonconforming structure on that property. Under these circumstances, the prior existence of the greenhouse that was no longer on the property cannot justify the automatic approval of a large house in its place. A new permit is required under the SZO.”
The Selmis also said that even if the greenhouse was considered to be a nonconforming structure, the guest house’s permit couldn’t have been approved because it would increase the nonconformity and “have a greater adverse impact on adjacent properties.”
Nonconforming use changes are determined by the town’s planning board (which did not see the project) not the town’s CEO.
“Under the SZO, the Planning Board would also have to determine, among other things, if the new use of the nonconforming structure would have no greater adverse impact on adjacent properties and resources,” the Selmis wrote. “The planning board has not made those determinations.”
They argued the greenhouse was not used as a greenhouse for more than a year prior to the guest house application and that the foundation has likely been changed from the original greenhouse’s foundation. That, they believe, is within the setback required. The planning board would be the town body to decide if that occurred. It had not.
HAMILTON ARGUMENTS
Hamilton brought surveyor Stephen Salisbury to testify that the guest house is in the same footprint as the greenhouse and discuss the distance from the setback, which relates to the variance. They also discussed a fence that had been torn down that they said was rebuilt closer to the property.
“Our goal is to reside here full-time once we retire and enjoy the property as much as possible in the meantime,” Podjasek told board members.
“I am an experienced real estate attorney, and I’ll prove I did extensive due diligence on the property prior to closing,” Podjasek said. “Hancock County’s Registry Office has a fabulous website that pretty readily you can know just about any document affecting a property in this county. And that’s exactly what I did immediately once we went under contract for purchase. And 72 Clark Point Road is fairly clean in terms of title.
“There’s the garden easement, some right of way documents and record variances for the property. I inspected the property during tours while we were negotiating the purchase, noticed that the greenhouse was close, saw those variances on title, and knowing that it would be important to understand that variance, I got copies of all the pertinent documents, and I closely reviewed the recorded variance, got copies of the minutes, and all other relevant documents.
“And in my experience as a real estate attorney, those documents … They could not demonstrate any more clearly that the purpose of the variance was to fully plan the location of the structure that existed when we were under contract to purchase the property.
“To quote from the June 6, 2012 minutes of the board, when unanimously issuing the variance, the violation no longer exists, quite simply, that is the only conclusion that can be drawn from the board’s act in 2012.
“Further, the variance was expressly issued to allow the property owner, the property, to be conveyed to our predecessors, the Lindquist family, without a cloud on title, and that clearing of the cloud on title extends to us, as well as successor owners.”
Variances do not expire, Podjasek said, and he and his wife purchased the house specifically because of that greenhouse footprint and variance.
“We passed the 30% threshold of that since the start date on April 9, at the time the Selmis’ appeal was filed, we were at about 43%, and as of today, John, we’re in for the cost we incurred for the project are approximately $479,000, which puts you at about 64% of the total estimated cost,” Hamilton said.“
The costs, he said, demonstrate a substantial start of the project.
Podjasek said that it’s been a hard situation.
“It’s honestly really challenging to do that in a setting where hostility has been publicly expressed, and I’m not trying to get in sympathy, but I am confronted on a regular basis when I just go out my front door with people that are quite aggressive and sometimes threatening, and again, I’m not saying that for sympathy, I’m just trying to provide some context for our situation,” Podjasek said.
RECUSALS AND RESIGNATION
During the series of meetings, Secretary Ted Fletcher mentioned that he was originally involved in one of original variances. Hamilton said that if there was a full and holistic interpretation of the variance, he would worry about Fletcher’s involvement. Selmi said that there was no issue. They decided to wait and see with the knowledge that Hamilton could object to Fletcher’s involvement at a later point.
Selmi asked about James Geary’s attendance when Geary missed the first three-hours of an earlier meeting that had to do with good cause exemption, which Hamilton planned to discuss again. He stayed and participated.
Chair John Izenour apologized for not having read a member of the public’s letter into the record at the last late meeting.
Board member Alyson Meiselman did not participate in much of the Selmi proceedings as an appeals board member because there had been an earlier vote that she had a conflict of interest.
Hamilton, when asked, said he did not want Meiselman to sit at the table with the rest of the board because of Meiselman trying to show a photo during that previous meeting. That photo was being introduced by Meiselman at the time.
However, though the chair asked Hamilton, he then said that it has been typical for recused members to stay at the appeals board table.
During the September 16 meeting, Izenour announced that he believed that Meiselman had resigned.
The Quietside Journal reported after the meeting that Meiselman received a confidential pre-disciplinary notice from the Southwest Harbor Select Board chair about her appointment to the appeals board. That document has now been publicly shared through that article.
The Journal also shared Meiselman’s response where she alleged that a fellow board member verbally assaulted her prior to another appeals board meeting on September 3 and was threatening and intimidating at an August 27 meeting.
EARLIER TIMELINESS APPEAL
Daniel and Ann Selmi had argued before the appeals board at a July meeting that they were not sent a notice about the project and therefore couldn’t have a timely response to the project, which town rules require. Since they do not winter at their Southwest Harbor property, they reasoned, they could not know the construction was occurring.
On July 20, the 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.
LINKS TO LEARN MORE
Board Grants Timeliness Exception to Selmis in Dispute Over Clark Point Road Guest House Permit
FROM THE TOWN
Volunteers Needed for the Following Positions:
Board of Appeals – 3-year term
Warrant Committee – 3-year term
Anyone interested in filling these positions is encouraged to attend upcoming meetings & complete a volunteer application.
Employment Opportunities
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