ELLSWORTH — The fate of two citizen initiatives to amend Bar Harbor’s land use ordinance was the subject of a court hearing Friday afternoon. The initiatives were supported by more than 50 percent but less than two-thirds of voters at town meeting elections in June of last year.
Superior Court Justice Robert Murray heard arguments in Bar Harbor resident Sam Dunlap’s appeal against the town of Bar Harbor in a Rule 80B complaint. Dunlap was represented by attorney Arthur Greif of Bar Harbor.
The town considers the amendments failed because they did not receive two-thirds support required when the Planning Board does not support the change. Dunlap’s appeal claims that only a simple majority vote was necessary and that the amendments should be adopted.
The proposed amendments would remove “public utility installation” and “public utility facility” as allowed uses in certain residential districts in the town. A group of residents concerned about a proposed electrical substation on Woodbury Road worked to bring the citizen petition last winter. The amendments were first placed on the warrant for a November 2015 vote, but the group sought and received a court order to have the amendments included on the June ballot instead.
Greif argued that under the town charter, any citizen initiative ordinance only requires a majority vote in favor to be considered adopted. The charter is supposed to govern in the event of a conflict between it and another town ordinance, he said.
“The Charter makes it absolutely clear that ‘the legislative authority of the Town of Bar Harbor shall continue to be vested in the inhabitants of the Town … acting by means of Town Meetings,’” Greif wrote in his initial brief. “The Charter is akin to a state or federal constitution and controls any contrary documents. … Legislative authority, per the Charter, rests with the annual Town Meeting, not with the Planning Board.”
The town, represented by Daniel Murphy of the law firm Bernstein Shur, argued that the initiatives needed a two-thirds margin vote to pass because the Planning Board recommended against them.
The charter “does not specify whether a simple majority or super majority is required,” Murphy wrote in his brief. He argued that reading the charter “majority” requirement as including more than one kind of majority prevents conflict between the ordinance and the charter. “The term must be construed in favor of the Town” under another section of the charter requiring that the powers of the town should be “construed liberally in favor of the Town,” he wrote.
“We are not at liberty to ignore the LUO,” Murphy said at the hearing, “so the town took prudent steps.”
“The idea of a ‘majority,’ since we’ve understood it from the founding of our Republic, has meant 50 percent plus one,” Greif said. He challenged whether “in favor of the Town” refers to the town’s staff, council or boards, or to the voters.
The language of the LUO provides four ways it may be amended, the justice said. Proposals may come from citizen petition, a property owner, the Planning Board or the Town Council.
Each of those options except the citizen petition specifically mentions Planning Board review. “My reading of subsection (1)” dealing with the citizen petition option “seems to preclude the need for a Planning Board recommendation,” he said.
Murphy argued the charter “builds in this process of the Planning Board weighing in” on warrant articles “so the public has the benefit of the board’s view on proposed initiatives.”
Murray did not issue a decision, saying he wanted to review the record again in light of the arguments presented at the hearing.