June 18, 2018
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Bar Harbor official testifies in lawsuit trial over land use amendments

By Bill Trotter, BDN Staff

BANGOR, Maine — A top official with the town of Bar Harbor took the stand Tuesday morning during the first day of a trial over land use amendments adopted in 2010 by the town.

Dana Reed, Bar Harbor’s town manager, gave testimony for a couple of hours Tuesday morning while being questioned by Portland attorney William Dale at the Penobscot Judicial Center in Bangor. Dale represents a group of Bar Harbor residents who filed a civil suit against the town in December 2010 over how the town handled proposed land use zoning amendments that voters considered in June and November of that year.

The case is being decided by a bench trial, rather than by a jury. Justice Ann Murray is expected to render a verdict within a few weeks after the end of the trial, which is expected to last three days.

The lawsuit alleges that the town did not follow proper procedures for changing the town’s zoning ordinances before or during the 2010 referendum votes. There were not adequate public hearings and notifications about the proposed changes, the complaint indicates, and the changes that were approved are neither “pursuant to, nor consistent with” the town’s comprehensive plan, which is a violation of state law.

Plaintiffs in the case are seeking to have the relevant voting results from the two referendums declared invalid, according to the complaint.

Reed testified Tuesday that, though he is the top-appointed official in Bar Harbor, the process of holding public hearings and various municipal committee reviews of proposed land use zoning amendments usually was handled by Anne Krieg. Krieg, who was hired as Bar Harbor’s town planner in 2002, was placed on administrative leave last summer and then resigned her post on July 27, 2011 as part of an agreement that included $84,500 in severance pay and a nondisclosure clause.

Dale said during his opening statement that Krieg had been fired over the mishandled zoning changes. He later asked Reed why Krieg had been let go, which prompted an objection from the town’s attorney, Michael Hodgins. Hodgins said Krieg and the town signed a confidential separation agreement and the reasons she left were not subject to public disclosure.

Murray said she would have to think about whether Reed should say in public testimony why Krieg was let go. It was not clear later Tuesday if Murray made a decision on that question.

Dale also said that the town’s economic development task force — a citizen committee charged with drafting an economic development plan for the town — exerted improper influence over the proposed amendments.

Reed acknowledged that when the elected town council created the task force, the panel had not been given the authority to review and weigh in on proposed zoning amendments.

Much of the dispute has focused on Appendix C, a table that lists permitted uses in the town’s various zones. The appendix was attached to different proposed amendments for the June 8, 2010 vote in five different versions, according to the complaint, and contains “numerous internal inconsistencies” that nonetheless were approved by voters. The appendix is comprised of more than 3,000 cells that contain an alphanumeric code, a key to which was not made available to voters during the vote, according to Dale.

Reed acknowledged to Dale that at times he made statements that the town’s credibility had been damaged by the snafu but he stopped short of saying the town had done anything to violate state law, either in preparing the amendments or in holding votes about them. He also denied that he had tried to suppress information about the controversy or that the town had “dragged its feet” in trying to address the confusion.

Reed said Bar Harbor’s complete land use zoning ordinance, which is 185 pages long, is complicated and has been cobbled together over decades by public hearings and voter referendums. Differing interpretations of ordinance frequently have been debated, both by average citizens and by paid professionals, he said.

“Zoning ordinances are really big in Bar Harbor,” he said. “Bar Harbor’s really big on process. We kind of like to have everybody give their input.”

During his opening statement, Hodgins said the town adequately handled the zoning changes.

“The fact that [the complete ordinance] is confusing is not a violation of the law,” Hodgins said. “The problem is certain people didn’t like the [voting] results, so now they’re in court trying to overturn the vote.”

During a break in testimony, Hodgins declined to comment further about the merits of the lawsuit.

Local residents Julie Vehr and Diane Vreeland also briefly testified Tuesday morning. Other current and former town officials, including Krieg, and other local residents are expected to testify during the trial, which is expected to end Thursday.

Follow BDN reporter Bill Trotter on Twitter at @billtrotter.

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