August 27, 2008
The Friends of Great Diamond Island Files First Lawsuit to Halt Hart Hotel Project
The newly formed The Friends of Great Diamond Island (The Friends) has filed suit against the Diamond Cove Homeowners Association (DCHA) and The Inn At Diamond Cove, LLC to invalidate the controversial vote for a commercial hotel in the Great Diamond Island Fort McKinley Historic District, and to seek enforcement of Maine Department of Environmental Protection (DEP) Orders on the island. The suit was filed in the Superior Court of the State of Maine in Portland, by the plaintiffs, The Friends of Great Diamond Island LLC, as well as islanders James W. Fast and James E. Brooks, as individuals.
The proposed commercial hotel development is supported by the City of Portland, and the Hart Hotels -- the latter being financial backers for local developer David Bateman. The project seeks to develop a nightly rentable 36-unit hotel (with multiple roomed units offering approximately 70 beds in total) in the Fort McKinley Parade Ground historic district, in the Diamond Cove residential community on Great Diamond Island. The development would also include a swimming pool and "service bar" to be constructed in areas previously dedicated to common open space. The developer is also seeking City approval to increase the capacity of the hotel by a second stage development in a separate historic building, which would contain up to 24 nightly rentable units (approximately 45 additional beds).
The suit seeks a declaratory judgment against the commercial hotel developer and the DCHA that the amendment weakening and removing certain existing Diamond Cove land use covenants and design criteria to accommodate the specific demands of the hotel development was invalid, and that the land use covenants and restrictions and applicable design criteria remain in full force, including all DEP Orders.
A homeowner association vote, taken in 2007, asked residents to amend the covenants governing their private development, specifically to allow a large commercial hotel enterprise in the center of a residential, pedestrian island neighborhood. The amendment to the covenants required a 67% affirmative vote because it would alter the fundamental regulations of the development to which all homeowners agreed as part of their property purchase. The covenants formalize requirements set by the City, DEP, and environmental organizations, and were designed to protect the island culture and ecology.
The developer is now seeking amendments to the existing Portland zoning regulations to reduce or weaken the requirements of the island zoning so as to permit the commercial hotel development. The developer's proposed amendments will be heard at a City Council Public Hearing on September 3, 2008.
Historically, the City has been largely opposed to commercial development on the islands in Casco Bay, setting high standards and tight regulation on any such changes. However, in the instance of the Inn project, the City has actively participated in DCHA elections trying to influence the outcome of the private community's decisions; the City has argued that it is entitled to do so because it filed tax lien certificates on the property at Diamond Cove due to the former developer's failure to pay City taxes on the property.
"The mere fact that the City of Portland sought out and actively participated in the ongoing elections of a private condo association within the City limits, to influence private property rules and regulations, is itself a disconcerting action," said Bill Robitzek, The Friend's head and chief spokesperson. "The further fact that they used a tenuous and wrong legal foundation to do so is simply incredible."
"The participation of the City of Portland in the voting processes of the DCHA which resulted in the narrow approval of the commercial hotel project was clearly invalid," said plaintiff and Diamond Cove homeowner Jim Fast. "The DCHA Covenants are clear. There's a strong question as to whether the City of Portland had standing to cast its votes. If the City had not cast these 23 votes, the project would have died there, since it only passed by a few votes."
The timing of the suit comes almost one year since the amendment was recorded. The DCHA covenants allow up to a year from the time of recording to contest any approved amendment.
"We want to be clear about one thing: This is a joint effort by homeowners across the spectrum of Great Diamond Island residents. We have strong support from the Cottage Community as well as Diamond Cove homeowners that this commercial hotel development is not wanted and we're prepared to fight it with this suit and other actions," says Robitzek.
The Friends of Great Diamond Island action comes as commercial and investment interests at Diamond Cove have sought to relax operational and governing rules to enable greater development in the tightly controlled private space.
"We are in solidarity with all true islanders in the state when it comes to our concern about maintaining community in the face of escalating development driven by investors whose only interest in the island is financial," says Tom Lucke, a homeowner at Diamond Cove.
"This is a small island, and nothing happens here without impacting everyone. Like many others, we moved to GDI for the quiet, peace, safety and natural beauty," notes Robitzek. "It seems sacrilegious that the City of Portland itself -- an entity that normally fights to protect unique aspects of Maine history -- is pushing forward this Hotel project in a residential historical neighborhood. What you're seeing here is an island population that wants to preserve the island experience as it is now, and this is our first step towards that goal."
Contacts: Bill Robitzek (Cottage Community Resident) Email Contact +1.207.766.2000 +188.8.131.5209 cell Faith Boudreau (Diamond Cove Resident) Email Contact
SOURCE: The Friends of Great Diamond Island