A Superior Court judge denied a bid Wednesday by neighbors of the Harbor View Hotel to invalidate a recent out-of-court settlement that rewrote a Martha’s Vineyard Commission decision approving a spa expansion at the hotel.
In a 15-page emergency motion filed earlier in the day, the neighbors asked to intervene, claiming the commission had no jurisdiction to revise its written decision without a court remand, and further that the commission violated the Massachusetts Open Meeting Law — both on the merits and on procedural grounds — when it approved the revised decision in executive session on July 7.
“If the hotel and the MVC wish to settle this appeal, the appropriate, customary and usual course of action would be for this court to remand the matter to the MVC for further proceedings. The MVC would then consider the matter anew in public . . . what a permit granting authority such as the MVC may not do is settle the litigation by agreeing in private to issue a new decision, away from public scrutiny,” the motion said in part.
Filed in court last Thursday, the settlement agreement was announced by commission chairman Joan Malkin that evening at the outset of the MVC’s regular meeting. The item was not on the agenda for the meeting. In brief remarks, Ms. Malkin said the litigation had been resolved, but she did not comment on the details of the agreement.
The Hon. Janet Sanders presided over the emergency court hearing Wednesday. While she appeared in person in Edgartown Superior Court, attorneys for the MVC, Harbor View and the neighbor group all participated by Zoom.
Commission attorney Johanna Schneider, a partner with Hemenway & Barnes in Boston, argued that the MVC has the authority to change a project’s conditions without a new hearing, provided the effect is not to deny or otherwise substantially change what was originally approved.
“This happens all the time. It’s taken as a given,” she said.
But the 40-minute hearing was dominated by arguments between lawyers for the Harbor View and the neighbor group, with the judge interrupting periodically to ask questions.
Hotel attorney Kevin O’Flaherty, a partner with Goulston & Storrs in Boston, said the neighbors had ample opportunity to be heard when the commission held hearings on the expansion plan. If they were unhappy with the MVC’s decision in September, he said, they had 10 months to appeal it, which they did not do.
Moreover, he said, the neighbors will have another opportunity to be heard when the project goes before the Edgartown Zoning Board of Appeals.
“This approval gives us nothing more than go forth and endure further misery,” he said.
Representing the neighbors, Dylan Sanders of Sugarman, Rogers, Barshak & Cohen in Boston, argued the decision agreed to in the settlement was substantially different from the one that had been issued in September.
“We were happy with the original decision, or at least content,” Mr. Sanders said. “We don’t get our final say on this revised decision.”’
Mr. Sanders added that the ZBA is likely to give the project a light review since it already has MVC approval, meaning anything his clients have to say there will not be given much weight.
In the end, however, Judge Sanders sided with the Harbor View, denying the neighbors’ motion to intervene.
Led by Lynn Allegaert, Geoff Caraboolad, Joseph Smith, James Swartz and Richard Zannino, the neighbor group is the same group that has been battling the hotel in recent years over its expansions in the residential Starbuck’s Neck neighborhood.
