Golden Anchor gets OK Appeals board rules after 9-hour session

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BAR HARBOR – The Golden Anchor.

These three words carry a weighty load of baggage for Bar Harbor residents who have watched and waited through years of infighting over developer Thomas Walsh’s plan to rehabilitate and expand a motel located on the waterfront in downtown Bar Harbor.

Since the project was first proposed in November 1999, municipal boards have spent more than 50 hours debating issues related to the Golden Anchor Inn. Thousands of dollars have been spent on legal representation for the town, Walsh, and his primary opponent, fellow developer, David Witham. Embattled town residents have whispered about missing files, altered documents, bias and filibuster.

Walsh’s enemies and allies alike believed that the battle might never end.

But at the conclusion of a nine-hour meeting Tuesday night, the town board of appeals unanimously granted Walsh his final permit – a permanent certificate of occupancy that gives him the right to operate his inn.

In doing so, the board supported Walsh’s assertion that the town’s code enforcement officer, Kim Keene, and its interim planning director, Town Manager Dana Reed, erred in their stringent review of the project.

“Exactly what was allowed is exactly what was built. They didn’t violate anything,” appeals board Vice Chairman Sean Sweeney said during the unusually lengthy session.

The town could appeal the decision to Hancock County Superior Court, but Reed said Wednesday that neither he nor Keene wanted to do so.

“The code officer and I accept the appeals board decision and appreciate the fact that this brings some closure to the issue,” he said. “We look forward to working with the Golden Anchor as they move forward.”

The planning board originally approved Walsh’s plan for the Golden Anchor on West Street in November 1999, a decision that was upheld by the appeals board and the Hancock County Superior Court. Then-Code Enforcement Officer Bob Sharkey granted a building permit based on an updated version of the plan in April of this year.

But after Keene inspected the completed $5 million building in July, she noted what she said were discrepancies between the original plan and what was actually built.

Several of the alleged violations were brought to Keene’s attention by former planning board Chairman Robert Macomber, a business partner of Witham’s who has opposed the project since its inception. Others were raised by current planning board Chairman David Einhorn, Keene said.

Keene, who has been on the job full time since July 9, found that the building contained a smaller area, included fewer rooms and appeared to be 5 feet taller than the permit allowed. She also said that a driveway between the Golden Anchor Inn and the neighboring Bar Harbor Club property, also owned by Walsh and slated for development, was illegal.

Reed drafted a letter of violation, which Keene signed and sent to Walsh on Sept. 7, stating that he could not receive his permanent certificate of occupancy due to the alleged violations.

Walsh chose to take his case before the appeals board for resolution, Walsh’s attorney Andrew Hamilton of Bangor explained to the appeals board, because he did not believe that the planning board or the municipal planning department, led by Reed and Keene, could make a fair determination.

“Someone wanted us back before them [the planning board] so they could play with us,” Hamilton said, claiming that information was taken out of context to build a case for violations – any violations.

“This has become a case of selective citation and selective enforcement of the ordinance,” he said. “You don’t wait several months and then sandbag the applicant and say, ‘Nyah-nyah-nyah, we got you.’ That’s not appropriate for municipal officials.”

In his comments to the board, Hamilton painted Keeneas a new, naive employee trying to please superiors who were acting on behalf of a hidden agenda.

“The sanctity of the design review process has been tampered with,” Hamilton said. “Folks have reached into that development review process.”

Keene denied Hamilton’s allegations, saying that she and Reed made an independent decision in response to new information.

“I ask that you discount the personal innuendo that has been offered to you tonight,” said Town Attorney Christopher Vaniotis, calling several of Hamilton’s arguments “red herrings”.

Board members, too, discounted Hamilton’s conspiracy theory and requested that the debate be restricted to zoning issues.

Every word of applicable town zoning was, in fact, debated in minutiae by the five attorneys arguing the case Tuesday night. Vaniotis represented Keene and the town, attorney Phil Worden, of Northeast Harbor advised the board of appeals, and Walsh had three lawyers, led by Hamilton, collaborating on his behalf.

Hamilton argued that the hotel plan approved by the planning board after several revisions does in fact reflect the 60-by-149-foot building that was constructed, although three guest rooms were removed to make room for a furnace and a “mechanical room” was added to the rooftop as the project progressed.

Planning board member Perry Moore, a landscape architect who spoke on Walsh’s behalf, described the design review process as a “funnel of information,” in which the planning board does not review every detail of a project.

“It’s a sequential review,” Moore said. “That process has – implicitly, as part of its nature – that the design evolves.”

Town Attorney Vaniotis countered that the modified plan should have been approved by the planning board before Sharkey granted Walsh a building permit.

The town would not take a stance on whether a 5-foot high structure that stretches all along the perimeter of the Golden Anchor roof meets the definition of a “mechanical room,” saying only that the matter should have been subject to planning board review.

Sharkey erred in April 2001, and as his successor, Keene has not only the right, but the responsibility, to fix his mistake, Vaniotis said.

“It comes down to the basic question of whether you can go through a site plan review, then build something different to what’s shown on the plan,” he said. “If site plan approval doesn’t mean that what the planning board sees is what the town gets, it’s useless.”

The appeals board supported Hamilton’s argument, stating that the motel building as constructed follows the “spirit” of the approved site plan, and unanimously voted that in the case of building area, the motel meets the proposed measurements exactly.

The board made a finding of fact that the rooftop structure is in fact a mechanical room, and that it is permissible under Bar Harbor’s zoning ordinance. Only appeals board member Ellen Dohmen argued otherwise, calling the issue “fuzzy.” She abstained from the vote.

Finally, the board unanimously stated that the driveway issue was “not ripe for appellate review.” The driveway quandary, a proposal for a West Street entrance lobby to the Golden Anchor, and a plan to develop the Bar Harbor Club all await municipal review.