BAR HARBOR —The voters have spoken. Or have they?
A lawsuit challenging election results in last month’s vote on proposed vacation rental regulations will have its day in court. Erica Brooks, a former Planning Board member and real estate broker in town, has brought the suit, with the backing of several town residents who Brooks said did not wish to be named as plaintiffs.
At the crux of the case is whether a tie vote by the Planning Board is a no vote, and therefore should have triggered the requirement of a two-thirds vote at town meeting for passage of amendments to the town’s land use ordinance. Brooks says yes, but the town attorney disagreed and advised the Town Council ahead of the vote that only a simple majority vote was needed.
In a three-page memo to the council, attorney Ed Bearor of Rudman Winchell wrote that “The result of a tied vote is that the Planning Board abdicated its responsibility and makes neither a recommendation that it ought to pass nor a recommendation that it ought not to pass. The effect on the subsequent Town Meeting vote is that the amendment shall be adopted by majority vote.”
In the town code, the Planning Board is required to give a recommendation on any proposed land use amendments by a majority vote. If the board recommends a potential change, it only needs a simple majority at town meeting. If the board does not recommend an amendment, it requires a two-thirds majority. There is no provision in the code for a tie vote.
The Planning Board met in September to give its recommendation on several land use amendments. One member was absent from the meeting and the four members in attendance cast tie votes on two of the amendments: Article 4, “an amendment to regulate short term rentals,” and Article 5 “to allow solar photovoltaic systems.” When the ballots were printed, those two articles, under recommendations, read: “The five-member Planning Board did not make a recommendation by majority vote that the proposed amendment ought to be adopted or rejected (vote 2 to 2).”
Voters ultimately passed the amendment allowing solar photovoltaic systems as a principal use by a vote 1,677 to 376, well above a two-thirds threshold, while the most controversial article seeking to regulate vacation rentals garnered a vote of 1,260 yes votes and 840 no, or 60 percent.
“It is about defending property rights and the process,” said Brooks on Monday about the lawsuit. “It could be a slippery slope if we allow this to go unchallenged.”
If successful, the suit asks the courts to “reverse the misinterpretation and/or misapplication of its Charter and Town Code in regard to adoption of the LUO amendments” and to “remand this matter back to the town for further action consistent with the town’s charter and town code and with the court’s opinion.”