ELLSWORTH — Two amendments to Bar Harbor’s land use ordinance (LUO) put on the 2015 town meeting ballot by petition are legal and were improperly rejected by the town, according to a ruling this week by Superior Court Justice Robert Murray.
Bar Harbor resident Sam Dunlap, represented by attorney Arthur Greif, filed a Rule 80B complaint last year challenging the town of Bar Harbor’s ruling that the two initiatives were defeated because they received less than two-thirds of the votes cast. They did receive majorities.
The proposed amendments 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.
The decision does not impact the electrical substation on Prospect Avenue currently under construction, Greif told the Islander in an email. “That permit was issued under the old LUO and is grandfathered.
“This is a victory for a little over a dozen people who worked very hard during the coldest and snowiest Maine winter in memory to draft these initiatives and gather enough signatures to get these initiatives on the ballot,” Greif said.
The town had argued that, under the requirements of the LUO, the amendments needed a two-thirds majority to pass because the planning board had recommended against them.
“We are not at liberty to ignore the LUO,” Daniel Murphy of the law firm Bernstein Shur, representing the town, said at a January hearing. “So the town took prudent steps.”
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.
Murray’s decision says there’s a way to interpret the language of the charter and the LUO that prevents such a conflict. He notes that of the four ways outlined in the LUO by which it may be amended, only the section describing citizens’ initiatives makes no mention of public hearings.
The Planning Board makes a recommendation only after such a hearing, so if no hearing is required, their recommendation should not come into play. The “voting thresholds,” Murray wrote, are “not applicable to amendments placed on the ballot by citizen initiatives.”
Murray granted Dunlap’s appeal and remanded the matter to the town clerk to certify the June 9, 2015 vote “consistent with this Order and Decision.”
Town Clerk Pat Gray said Monday she had not yet received official word of the order from the court. When she does, she will re-certify the election results, she said. The amendments take effect 30 days after the vote.
Gray said the amendments will be sent to the company that codifies the town’s ordinances. The text of the town code is updated quarterly. Before the changes are incorporated into the next regular update, she said, a “new legislation” section will appear noting the change in the Municipal Code section of the town website.