June 22, 2018
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Judge rules against Bar Harbor, says town didn’t follow procedure when changing zoning rules

By Bill Trotter, BDN Staff

BAR HARBOR, Maine — A Superior Court judge has ruled primarily in favor of a group of local residents who sued the town over zoning changes that were approved at local referendums in 2010.

The lawsuit alleged that the town did not follow proper procedures with four proposed amendment changes to the town’s zoning ordinances prior to holding votes on those changes in June and November of that year. A bench trial on the allegations was held last July in Bangor.

In her 28-page, Jan. 8 decision, Justice Ann Murray threw out changes that were made to a spreadsheet of land uses and districts known as Appendix C and changes to the town’s Official Zoning and District Map, both of which were approved in June 2010. Murray also threw out the results of a vote that November that created a new district along Mount Desert Street, replaced some historic districts with another, and expanded a Hulls Cove business district and a shoreland zone district.

Murray left intact changes that were made to all “village” districts during the June vote. She also sided with the town on one contested amendment, ruling that there was adequate public notice given for a proposal to amend a shoreland zoning ordinance in November 2010.

Dennis Bracale, one of the plaintiffs, said Monday there were “hundreds and hundreds of changes” affecting districts throughout Bar Harbor in some of the varying versions of Appendix C that were presented to voters at the referendums. The changes in the appendix were not adequately publicized or described to voters before the ballots were cast, he said, and were so numerous and inconsistent with one another as to be incomprehensible.

“Nobody knew what they were voting on,” Bracale said. “[Murray’s decision] gives us great relief. I hope this does well for the town.”

On Monday, Bracale said one of the many unpublicized changes in Appendix C was to allow large hotels, motels and other types of lodging in the local village of Hull’s Cove, but that there was inadequate public notice of this proposed change prior to the vote. He said the judge also noted that the town’s comprehensive plan does not allow such lodging in Hulls Cove. State law in Maine requires every municipality’s land use zoning ordinance to be consistent with its comprehensive plan.

The town’s attorney, Michael Hodgins of Augusta, said Monday that Murray determined the town followed proper procedure in scheduling and holding public hearings about the proposed changes prior to the votes. The judge ruled against the town on amendments where she said the public hearing notices and resulting referendum questions were not specific enough about what changes were being considered.

“The town followed proper procedures [in holding the public hearings] and didn’t do anything improper,” Hodgins said.

Hodgins said he did not know whether the town might decide to appeal Murray’s decision.

Local residents who are plaintiffs in the suit are Bracale, Lois and William Frazier, Robert and Pauline Maguire, Elizabeth Mills and Julie Vehr.

William Dale of Portland, the plaintiffs’ attorney, said Monday that Murray declared null and void any changes that affected districts that did not appear by title in the wording of the referendum questions. With the judge’s ruling, he said, the affected ordinances, maps and Appendix C automatically revert to their pre-vote versions from 2010.

Dale said that the five-plus months that it took the judge to render a decision reflect the complex arrangement of the ordinances and procedures at issue and the amount of exhibits that were presented in the case.

“She had a lot to go through,” Dale said. “I think the [land use zoning] process is more lengthy and complicated in Bar Harbor than in any other municipality in Maine.”

Bar Harbor Town Manager Dana Reed on Friday declined to comment on Murray’s ruling, saying that town officials had not had time to review the decision. The Town Council is scheduled to meet in executive session at 6 p.m. Tuesday, Jan. 15, just prior to their regular biweekly meeting, to review the decision with Hodgins, according to the published meeting agenda.

Follow BDN reporter Bill Trotter on Twitter at @billtrotter.

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