Southwest Harbor Appeals Board Reconsiders its Decision to Hear Appeal of 72 Clark Point Road
Setbacks, Privacy, and Property Lines: Two Appeals Tangle Clark Point Road
SOUTHWEST HARBOR—There were not one, but two, different appeals on the town’s appeals board agenda, Wednesday night.
Both dealt with properties on the Clark Point Road, property lines, and structures that were on previous foundations. And there was no final ruling on either, but they both moved in different ways.
72 CLARK POINT ROAD
The first item concerned the appeals board’s own June 4 decision to not hear an appeal of a guest house being built on Southwest Harbor’s Clark Point Road.
The original 3-2 denial of the appeal of the building in downtown Southwest Harbor at 72 Clark Point Road occurred because the board found that the appeal itself did not meet the town’s guideline of 30 days.
William and Martha MacIntosh (who own 76 Clark Point Road) had appealed their neighbor’s guest house, which is under construction. The couple said the house impacted the privacy of a guest room at their own property. This was reiterated June 25 as the board determined whether or not to reconsider its original ruling.
It decided that it would. That hearing is tentatively set for July 2 at 6 p.m. For some members, the decision seemed to hinge on an alleged setback violation.
The board has to have a complete decision by the 45th day after its original denial of the appeal, which was June 4, which means the decision must be prior to July 19.
“Reconsideration is wholly discretionary for the board,” said P. Andrew Hamilton (Katahadin Law), representing the property owner during Tuesday’s discussion. “It should essentially be reserved for those instances where your decision was buried, you didn't have any advice of counsel, and you want to correct something that was made in the underlined decision. That's really the heart of reconsideration. Otherwise, it's an exceptional procedure. It is afforded by statute, and 2691-3F affords it, but it uses the word ‘may.’ And in this context, I think even the law court would say ‘may’ does not mean ‘shall.’”
Hamilton added that he believes that there were multiple reasons to deny the request.
“It asks for reexamination of a 13-year-old variance, first of all,” Hamilton said. “If finality and closure were part of the majority's decision on June 4, this rationale for reconsideration undercuts your decision. It's really trying for a reexamination of a sound 3-2 board decision to deny the appeal as time-barred because it was brought 139 days after the permit issued, four months after the 30-day appeal period expired.”
The appeals board had determined on June 4 that the MacIntoshes did not appeal the project within the 30 days required by the town. The building permit was issued in December 18, 2024. Abutters were notified on December 9. The appeal was filed May 6.
Justin Podjasek’s project 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 then, 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.
The MacIntoshes argue that the building permit should not have been issued because it will be close to a window in their guest room which will impact any privacy of guests in that room. The greenhouse foundation was approximately two feet away from the Macintoshes’ property line. The couple says that the new structure is one foot away from that line.
The MacIntoshes believe that the structure violates that setback and the variance granted doesn’t stand for this project. That would make it a project that would have to be approved (or not) by the town’s planning board instead of the town’s code enforcement officer.
On Wednesday, June 25, this was stressed again.
“I think the information we did not have during the last deliberations primarily pertains to the actual numerical distance of the new construction from the boundary line, which has shown that the submissions on this side is plus or minus seven inches, which is certainly well outside of the variance approved by a 2D, as per the 2012 grant of variance,” said the representative of the McIntoshes, Wednesday. “Our position is that the change of use and the increase in height, the failure to relocate the structure to at least the variance-granted distance for all required planning review. This did not receive the planning board review and was simply approved by the code enforcement officer who may or may not have been aware of exactly the circumstances on the ground and the distance of the construction from the boundary.”
90 CLARK POINT ROAD
The second item involved 90 Clark Point Road and the renovation and expansion of a non-conforming structure, an application by Christopher and Anne Hopkins, which was granted on April 17 by the town’s planning board.
George T. Swetz and Gigi N Girgis were represented by Stephen Wagner (Rudman Winchell). Swetz and Girgis are abutters to the Hopkinses’ property and live in Washington, D.C.
They objected to the planning board’s approval of the Hopkinses’ plans to “convert an existing deck into an enclosed mudroom,” according to papers filed in the appeal. They said it was the third version of the project since 2022. They argue that the planning board should have applied the town’s land use ordinance as well as the SZO.
In the papers filed, they also argued that the application would “unlawfully expand a nonconforming accessory structure that is located partially within the water body setback in violation” of the town’s SZO, that it’s not permitted under one of the SZO sections, and that the board acted contrary to the SZO.
They also argue that the Hopkinses do not have standing because they don’t have the title, right or interest to obtain the permits because there is “an unresolved encroachment of the Hopkinses’ nonconforming accessory structure on the Swetz and Girgis Property.”
The build is for a single-story, 131-square-foot mudroom that would be an addition to an already existing main house. The application says that the addition is within the footprint of the existing deck. And there is also a renovation of an existing bedroom wing. The Hopkinses were represented by Michael Wade of DGC Architects out of Ellsworth.
The matter was continued until a July 30 meeting due to the need for a complete record, including finalized planning board minutes from its April 17, 2025 meeting.
ELECTIONS
The board voted for John Izenour to stay on as chair; Ted Fletcher to stay on as secretary and Alyson Meiselman was elected vice chair. They were voted in as a slate.
The Bar Harbor Story is generously sponsored by Rick Osann Art.
LINKS TO LEARN MORE
Board of Appeals Ordinance
Application for Appeal
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