BAR HARBOR — A lawsuit challenging a zoning ordinance amendment passed by voters in June 2017, which created a Shoreland Maritime Activities District at the ferry terminal property, was dismissed by the Maine Supreme Judicial Court last month.
Maine Supreme Judicial Court Justice Andrew Mead wrote in a Dec. 19 decision that the property owners filing the suit “failed to demonstrate a particularized injury” due to the zoning ordinance amendment.
“Although the Land Use Ordinance has been modified, and the parties agree that the changes were intended to improve the ferry terminal to accommodate cruise ships, there is no currently planned action for construction or development in the Ferry Terminal Property,” wrote Mead.
“Because we conclude that the property owners have failed to demonstrate a particularized injury and have commenced this action prematurely, we vacate the judgment on standing and ripeness grounds and remand for dismissal without prejudice,” Mead summarized.
Town Manager Cornell Knight said of the decision, “It’s a win for the town. The lawsuit was brought before the court, and the court said they had no basis to bring it.”
Local lawyer Arthur Greif, who had been following the case, wrote in a letter to the editor last week that the “without prejudice” dismissal meant that “the lawsuit can be brought again when the town or a developer is granted Planning Board approval to build such a pier.” In that light, he wrote, “Neither side can claim victory. Whether Article 12 [the approved zoning change] is legal is still an open question.”
Josh Randlett, the attorney representing the town, wrote in a statement that “Although dismissal ‘without prejudice’ means that those legal arguments could hypothetically be raised in a future lawsuit, … the town is confident that a court would conclude that Article 12 is entirely consistent with Maine law, just as the trial court did in this case.”
The lawsuit, originally filed in July 2017 by James Blanchard and the late William Ruger, later joined by other property owners whose properties overlook Frenchman Bay, challenged a zoning amendment to create a Shoreland Activities District at the then-vacant international ferry terminal property on Eden Street.
The suit asked the court to invalidate the zoning change, claiming it was inconsistent with the town’s comprehensive plan and state shoreland zoning rules.
The plaintiffs had offered to settle the suit in December 2017, “if the Town Council would, in turn, vote at an upcoming meeting that it has expressly abandoned plans for construction of a large mega-cruise ship pier, by either the town or any third party, and withdraw its support for LD-1400 [the proposed Bar Harbor Port Authority bill],” according to the proposal.
The town council rejected the settlement offer.
According to Grief, “All the Blanchard plaintiffs sought, in exchange for this dismissal ‘without prejudice,’ was a ‘sentiment of the current Town Council’ vote that it had abandoned plans for a ‘mega-cruise ship pier’ and a Bar Harbor Port Authority that would only make sense in the context of such a pier.” Grief surmised that such an agreement would have saved the town “very expensive litigation.”
Randlett viewed the offer differently. “The plaintiffs were only offering to dismiss their case without prejudice if the Town was willing to give them precisely what they sought to accomplish through their lawsuit,” he said. Furthermore, Randlett said that the ‘without prejudice’ dismissal would legally allow the plaintiffs “to re-file their lawsuit at any time.”
“Because the town respects and is committed to carrying out the will of the people as expressed in their vote in favor of Article 12, the town declined to accept the plaintiffs’ terms,” Randlett said.
The lawsuit continued until December 2018, when Justice Michaela Murphy of the Business and Consumer Court decided in favor of the Town. This prompted the plaintiffs to appeal to the Maine Superior Judicial Court.
According to Knight, the lawsuit cost the town $38,000 over the course of two years.