Letter to Editor: Role of the warrant committee

To the Editor:

I thank the Islander for its coverage of the Charter Commission’s first public hearing on Jan. 7. I write because one speaker, Tom St. Germain, misremembered the factual and procedural history of the failed attempt to repeal and replace our Land Use Ordinance, and another speaker, Cornell Knight, both misremembered key facts surrounding the failed attempt to enact Article 13 and failed to understand the primacy of our First Amendment when it comes to elected legislative bodies such as the warrant committee.

Mr. St. Germain made the totally unsupported ad hominem claim that warrant committee members did not read either the Land Use Ordinance or the proposed repeal and replace version that the voters rejected in June of 2015. I attended numerous planning board and warrant committee meetings on the repeal and replace issues, including the meetings of the general government subcommittee of the warrant committee. I had extended discussions with those subcommittee members and was impressed at the efforts they made to closely examine what Mr. St. Germain described as a $100,000 effort to correct “typos” and make “very few changes” in the LUO rewrite.

The planning board voted unanimously to advance the rewrite despite thoughtful criticisms from warrant committee members, speaking as citizens. Planning board members assured the public that there were no substantive changes in the permitted uses in each of the many zoning districts in Town. At a preliminary meeting of the warrant committee on March 17, 2014, members of the general government subcommittee pointed out that the rewrite involved significant unnoticed changes in permitted uses in each district they had examined. This discovery involved a painstaking line-by-line comparison of the current LUO with the proposed LUO rewrite.

Attorney Dennison, who helped the planning board in its rewrite, was in attendance and she emailed the town manager that evening, advising that the town withdraw the LUO rewrite from the June 2014 ballot and pledging that she would refund $5,000 of the legal fees she had been paid. The next night, the town council voted to pull the LUO rewrite because of the good work of the warrant committee in uncovering these errors.

The warrant committee had done its job. It had made sure that the town did not present to the voters as a minor LUO rewrite what actually involved numerous significantly substantive changes. It made sure the town was acting legally.

The planning board voted later that year to advance the LUO rewrite a second time for the November 2014 election. A general government subcommittee member discovered that neither the current LUO nor the rewrite incorporated the changes that Justice Murray had ordered in her January 2013 decision in Bracale v. Town of Bar Harbor. This was stunning. The entire premise of Justice Murray’s opinion in Bracale was that the town, in its formal notices, had advertised LUO changes as being very minor and affecting very few districts, when the changes were wide-ranging and affected most of the town. Justice Murray had ruled that Bar Harbor voters had not been fully and fairly informed of the changes on which they would be voting. This LUO rewrite sought to reauthorize zoning changes the court had already struck down. The council voted on August 5, 2014 to pull the proposed LUO rewrite from the November 2014 ballot, because it failed to comply with Justice Murray’s decision.

Once again, the warrant committee’s dedication to its task had saved the town from errors the planning board had never caught. The warrant committee had saved the town the embarrassment of losing another potential lawsuit based on the town government describing LUO changes as minor when the changes were major, or in legal parlance, substantive.

When the LUO rewrite came before the voters for an actual vote in June of 2015, some warrant committee members and other citizens wrote letters against it: it authorized giant electrical substations throughout the town’s residential districts; it inappropriately streamlined the subdivision approval process; it added hotels throughout one district which are limited to a single lot in that district in the current LUO; etc. The LUO rewrite was defeated by a vote of 58 percent to 42 percent. Had the planning board listened and responded to the earlier concerns voiced by citizens, some of whom were warrant committee members, they could have fashioned a limited rewrite that truly did only what the Planning Board claimed it did: moved uses listed in Appendix C into the body of the LUO. Ultimately, the planning board did this and last year the incorporation of Appendix C into the LUO was approved by the planning board, endorsed by the warrant committee, and enacted by the voters.

This useful advocacy by the warrant committee came under attack by Cornell Knight at the January 7, 2019 charter commission hearing. He incorrectly claimed that three members of the warrant committee distributed and circulated petitions to place Article 13 on the June 2017 ballot and that was somehow a breach of ethics. The sworn petitions are a matter of public record and each circulator was obliged to verify under oath that he or she had witnessed each signature. If Mr. Knight examined those sworn petitions, he would discover that only one warrant committee member, Jonathan Eno, was a circulator.

More fundamentally, no elected official serving in a legislative capacity surrenders his rights to free speech and free petition under the First Amendment. The town’s attorney, Bernstein Shur, advised some time ago that the vocal opposition to a zoning change by warrant committee members speaking before the planning board did not disqualify those members from voting on the same issues when they came before their own committee. Public officials serving in a judicial capacity, such as LUO board of appeals members, must disqualify themselves if they have previously opined on an individual application. However, elected officials who are weighing broad legislative changes are always free to voice their opinions to others. In 2017, members of the planning board wrote a column in the Islander promoting Article 12 and critiquing Article 13. That was their absolute right to protected speech under the First Amendment. The First Amendment similarly protected Mr. Eno when he circulated a petition to place Article 13 before the voters. The First Amendment by its express language protects both “the freedom of speech” and the right “to petition the Government.”

The warrant committee, elected by our voters, has taken its duties of public involvement seriously. It should be praised when any of its members circulate petitions for LUO amendments just as the town council-appointed Planning Board should be praised when it crafts LUO amendments on its own. Both help to make our democracy work. Similarly, the warrant committee should be praised for having reviewed the LUO rewrite so carefully on three separate occasions. It has provided a critical check and balance for our government which prevents one branch of government from becoming too powerful.

Both Mr. St. Germain and Mr. Knight have critiqued the First Amendment activities of warrant committee members. The charter commission must craft any changes to the charter by recognizing that the remedy to speech with which government officials disagree is not enforced silence, but more speech. Rather than silence the warrant committee by stripping it of its powers, the commission should keep the warrant committee’s powers intact. The warrant committee is part of the healthy checks and balances which promote a more robust democracy for all of us.

Arthur J. Greif

Bar Harbor


Leave a Reply

Your email address will not be published.