Appeals Board Upholds Short-Term Rental Decision
Glitch in the system causes string of events
BAR HARBOR—Sometimes the technology doesn’t work. For something that’s been as politically fraught as short-term rentals in Bar Harbor when that technology fails, it can create turmoil that moves into the realm of lawyers and the Bar Harbor Appeals Board.
Brandan and Monika McCallion and Old Bears, LLC learned that this year when the software the town uses for short-term rental renewals glitched. The McCallions aren’t the owners of the rental property at 12 Bogue Chitto Lane property; they are neighbors of the property and appellants that went before the Bar Harbor Appeals Board to try to overturn the Bar Harbor Code Enforcement Officer Angela Chamberlain’s decision to let the Bogue Chitto Lane home be rented despite the glitch.
The property is owned by W.A.R.M. Management LLC (Roy and Marcia Levitt). The Levitts own two short-term rentals in Bar Harbor. One is at 49 Mount Desert Street; the other is on Bogue Chitto Lane. Both are considered VR-2s, meaning that they must be permitted each year, and it does not have to be the owner’s primary residence. That permitting process includes an annual $275 permitting fee that’s payable to Bar Harbor. It and the application must be done by May 31 of the rental year. There is a cap on VR2 rentals in Bar Harbor and a waitlist. Once you lose your license, you are not allowed to continue to rent the property for short-term stays, but may follow rules to get back on the waitlist. That situation has occurred since the town enacted the cap and the licensing process.
According to Bar Harbor’s Planning and Code Enforcement Office, “The town’s records show that on January 3, 2023, Marcia Leavitt paid for two separate VR-2 registration renewals through the Short-Term Rental registration IworQ portal (electronically).
Both payments were processed.
“However, due to a glitch in the IworQ portal, the Administrative Assistant, Tammy DesJardin, did not receive the two applications for VR-2 registration rentals, but only one application,” the staff report for the Appeals Board reads.
DesJardin gave the applications to Code Enforcement Officer Angela Chamberlain to review. Those were hard copies. But, only one of the Levitts’ applications was renewed—the Mount Desert Street property.
Chamberlain decided there was enough evidence that Levitt had paid for her registration renewals on January 3, 2023, well before the May 31 deadline. On October 30, Chamberlain issued the renewal “to correct the error made by the town.”
During the meeting, Chamberlain said that the town was responsible for the mistake and that the Levitts clearly submitted their applications on time.
Did the rest of the application get lost in the glitch in the software or human error in the Code Enforcement Office, Chamberlain asked somewhat rhetorically.
“I can’t answer that,” Chamberlain said.
During the meeting, Desjardins said that when she was going through the applications, there were multiple errors with applications and she contacted the company.
“It shows that she actually did apply,” Desjardins said of Levitt’s applications.
The Bar Harbor Appeals Board met via Zoom and held an administrative appeal of a short-term on January 9. Attorney David Lourie represented the homeowners. Colin Chard represented the appellants.
Appeals Board member Anna Durand asked, “When you’re using the system, like you do all the time, is there no backup?”
“Once it’s gone, it’s gone,” Chamberlain said. “There’s no backup.” She compared it to hard copies that have no backups if they are thrown in the trash.
Desjardins said one of the problems she had with that, was that the online web forms weren’t attaching correctly. “It was like they were never doing any of those. That was one of the glitches.” Instead, all she was getting was a payment receipt. This has been corrected since.
Board Chair Ellen Dohmen suggested putting a disclaimer on the files for the registrants to keep hard copies of registrations.
Appeals Board member Cara Ryan said she hoped that they wouldn’t see cases like this again, where people did everything technically right, but were in a state of limbo.
“It is not our intention to ever throw road blocks in people’s way,” Chamberlain said.
In a December 2023 memo to the town, Lourie wrote that after the home began renting, the Old Bears, LLC, “demanded that the CEO enforce the STR provisions forfeiting W.A.R.M.’s STR right to Eden Rocks Oceanside (the name of the property).”
“It is clear that W.A.R.M. Management was not operating properly as a VR-2 under the ordinance,” Attorney Colin Chard said because the unit isn’t offered for rent in its entirety. “This is not in compliance. It is not in compliance with the land use ordinance.”
The ordinance, Chard said, requires that the compliance certificate be displayed. It could not, he said, because it didn’t exist. “The burden is on the operator of the vacation rental to comply with code.”
Levitt said that she had her permit from last year hanging on the bulletin board displayed and did not realize that it had to be changed out every year, which she realizes now, she said.
The registration number does not appear on the sites advertising the rental, Chard said.
Ryan asked when applicants get their registration/permit number to post. Chamberlain said that when it’s processed and issued, it’s sent through the mail from the department.
“I don’t go and look for violations,” Chamberlain said. “I don’t go to 650 websites.”
Another question Chard brought up is that the home was rented as a VR-2, but seems more like a VR-1. However, the applicants live in both Bar Harbor and Florida.
Town Attorney Tim Pease said that there were multiple issues, but the one for tonight focused on the main issue.
Town Attorney Dan Pileggi said that it is a de Novo hearing where nobody gets deference, but are just weighing the evidence that is received. With the de Novo hearing, it is very important that specific findings of fact are tied to the evidence that is received so that the record is cleared and supported by what the board has seen or heard.
Dohmen said that the issue before them was if Chamberlain acted correctly or not, not that there is an ancillary violation about posting the registration number.
Ryan said that the board has to support the code enforcement officer’s decision though she feels like there is some negligence on the part of the property owner. Ryan said, “This is a serious business in this town and people need to follow the rules very carefully.” And those rules need to be completely clear. The rules matter, she stressed.
Pileggi said the board’s job is to determine if Chamberlain’s actions to correct a code enforcement office “mistake” were appropriate.
Durand mentioned short-term rental owners’ past appeals that had been denied, but Dohmen said that the difference was that those other property owners had failed to file or meet deadlines.
The Levitts, she said, paid their money, and even received a receipt that the town accepted their payment.
“If I pay my taxes to Bar Harbor and they cash my check…?” she said, beginning a comparison, and said then if the town told her that she hadn’t paid her taxes, she’d walk in with her check and prove it. That situation, she said, isn’t analogous with people not licensing their properties to rent and then coming to the Appeals Board.
Durand said that as a business owner, “It's always on me to keep on following up,”
In multiple motions, the Appeals Board unanimously accepted the findings of facts that the portal wasn’t working and that impacted several transactions, that applications were lost and misplaced because of that, that at the time of the issuance of the notice of violation in September 2023, the code enforcement officer wasn’t fully aware of the submission of the payments and issues with iWork.
Dohmen said that Levitt called immediately about her notice of violation this fall, which brought it to Chamberlain’s attention.
Pileggi said that Chard’s argument is that even if all the findings of facts are true, Chamberlain doesn’t have the authority to retroactively approve the registration. Within the LUO, there is a statement that the CEO’s power is to enforce the ordinance.
The board unanimously found that the appellant did not meet its burden of proof and the appeal was denied.