BAR HARBOR — Voters will only need to garner a simple majority at next month’s town meeting to pass the proposed vacation rental regulations, according to the town’s attorney.
The legal question has been hovering over Bar Harbor since the Planning Board’s September tie vote on whether to recommend the amendments to the town’s land use ordinance.
In the town code, the Planning Board is required to give a recommendation on any proposed 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.
Planning Board member Ruth Eveland was absent from the Sept. 1 meeting when the board was scheduled to give its recommendations for several land use ordinance amendment proposals that will be on the warrant at the Nov. 2 town meeting. Without her vote, the board was deadlocked at two-all.
“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,” attorney Ed Bearor of Rudman Winchell wrote in a three-page memo to the Town Council. “The effect on the subsequent Town Meeting vote is that the amendment shall be adopted by majority vote.”
There have been other interpretations. Since the board did not vote to recommend, that counted as not recommending, some, including Planning Board chairman Tom St. Germain, have reasoned.
The town code does not explain what should happen if the board fails to make a majority opinion.
The Planning Board’s vote has highlighted the tension between the council and the board over the new vacation rental regulations and could spark further changes to the land use ordinance.
Council member Gary Friedmann proposed stripping the Planning Board’s power to impose a two-thirds majority if they choose to not recommend an amendment.
“I don’t see any useful purpose in having the Planning Board’s recommendation require a supermajority of the voters,” he said in an interview with the Islander. “We have issues that are going to be very contentious and to get a two-thirds majority on those land use issues is going to be very difficult.”
Other councilors were leery of making changes to the land use ordinance over a single incident.
“It is extremely reactionary,” said council member Erin Cough.
The council ended up voting to recommend the Planning Board consider an amendment, which could very likely require a two-thirds majority to pass at town meeting if the proposal got that far. Council members Cough, Jeff Dobbs and Matthew Hochman voted against the idea.
Hochman said he wanted to know more about the origins of the two-thirds majority.
None of the neighboring towns have any similar provision and Bar Harbor is a rare-hybrid government that has both a council and town meeting that handles budgets and land use ordinances.
Town Manager Cornell Knight and Planning Director Michele Gagnon said they didn’t know of any other communities that had the potential for a two-thirds majority requirement.
It appears the Bar Harbor provision has been on the books for a while, and it was even more stringent before that.
Similar language to the current town code was added in 1975. Prior to that, it appears that a two-thirds vote was required for all amendments, said Liz Graves, the town clerk.
With how contentious the issue has been in town, the town meeting decision will likely result in a lawsuit if the vote passes, but not by a two-thirds majority.
Planning Board member Eveland urged people to vote for it and told the council Tuesday that she would have recommended the amendment.
Eveland needed to attend a medical appointment with a family member the day the board took up its recommendations but was ready and able to vote remotely on the issue. However, she was not able to weigh in because at the same Sept. 1 meeting, the board declined to pass a remote participation policy.
Several other boards and committees in town had already passed the participation policy, which makes allowances for both members and the public to attend meetings remotely in certain circumstances.
Planning Board Vice Chairman Joe Cough, who voted against recommending the vacation rental amendment, raised several process issues over how the public hearing for the remote participation policy was called.
Which Planning Board members should have been able to actually vote on the rental regulations recommendation also drew Friedmann’s ire. He questioned why some Planning Board members did not recuse themselves from the vacation rental vote, like members of the Warrant Committee who had ties to vacation rentals, either directly or through family members.
“I think the Planning Board should have done the same or at the very least disclosed those conflicts,” he said.
The council proposed the changes to slow the conversion of the town’s housing stock into vacation rentals, such as Airbnbs. The new rules would put a cap on the number of vacation rentals that are not part of people’s primary residence.