STATE OF MAINE Hancock, ss.
JAMES BLANCHARD, a resident of Bar Harbor, ME; WILLIAM B. RUGER, JR., Trustee of the 1999 William B. Ruger, Jr. Revocable Trust, a resident of Newport, NH; and JONATHAN ENO and KAREN GILFILLAN, residents of Bar Harbor, ME
Plaintiffs
v.
The TOWN OF BAR HARBOR, a municipal corporation existing under the laws of the State of Maine and located in the County of Hancock, State of Maine,
Defendant
SUPERIOR COURT
Civil Action
Docket No.
FIRST AMENDED
COMPLAINT FOR
DECLARATORY JUDGMENT
NOW COME Plaintiffs, by and through the undersigned counsel, and hereby complain as follows:
1. Plaintiffs James Blanchard, a resident of Bar Harbor, Maine; William B. Ruger, Jr., as Trustee of the 1999 William Ruger, Jr. Revocable Trust, a resident of Newport, New Hampshire; Jonathan Eno and Karen Gilfillan are all owners and residents of real property located on the inner harbor ocean coastline near downtown Bar Harbor, Maine. Mr. Blanchard is a year-round resident of Bar Harbor, and Mr. Ruger is a summer-seasonal resident. Mr. Eno and Ms. Gilfillan are a married couple and are residents of Bar Harbor. Plaintiffs’ real properties in Bar Harbor, as well as the real properties owned by other residents, which adjoin Plaintiffs’ properties in Bar Harbor, are directly, substantively and negatively impacted by the re-zoning of a
certain lot or parcel of real property on the Bar Harbor oceanfront (Tax Map 231, Lot 004; the “old ferry terminal property”) pursuant to a Bar Harbor Town meeting vote on June 13, 2017, the validity of which is the subject of this civil action. The old ferry terminal property was the only land re-zoned by the referendum vote at issue in this civil action.
2. Defendant Town of Bar Harbor (the “Town”) is a municipal corporation existing under the laws of the State of Maine and located in the County of Hancock, State of Maine. The Bar Harbor Town Council drafted the town meeting warrant article in question (“Article 12”) and placed it on the regularly-scheduled, Town meeting June 13, 2017 referendum ballot, where it passed by a vote of 945 to 658, defeating a competing measure (“Article 13”) actively supported by Plaintiffs. A copy of Article 12 is attached as Ex. A.
3. Under the terms of Article 12, substantially larger cruise ships, with substantially more passengers, will be able to come to Bar Harbor and will substantially overburden the Town’s ocean harbor waters as well as overburden its land-side facilities to be able to take as much as a three-fold increase in passengers coming ashore.
4. Under the provisions of the Town Charter, the exclusive authority to adopt or amend the Town’s general, non-shoreland local zoning ordinance, as well as the Town’s shoreland zoning ordinance (together known as the Land Use Ordinance, the “LUO”), has at all times relevant to this action been vested in the Town meeting. See Charter Art. II, § C-6(B)(3)(exclusive authority to amend the LUO rests with Town meeting).
5. Pursuant to the Charter, the electors act on referendum questions by voting on “articles” on the “warrant” at the annual, or at a special, Town meeting. Under Charter Chap. C, Art. II, § C-5(c), each warrant article must be accompanied on the face of the ballot by the recommendation of the Warrant Committee and, for LUO amendments, also by the recommendation of the Planning Board. Here, the Warrant Committee recommended against passage of Article 12 by a vote of 17 to 3; the Planning Board recommended in favor of passage of Article 12 by a vote of 5 to 0.
6. Under the LUO, Sec. 125-9(D), and applicable provisions of Maine law, 30-A M.R.S.A. Sec. 4352, the Planning Board must hold at least one public hearing on any such amendments before they are presented to the voters for formal action, and certain notices of general applicability in the community must be given in some circumstances and certain specific notices must be given to the owners of certain properties, the uses of which are proposed to be changed, in other circumstances. Defendant Town failed to provide all of the legally required notices in either circumstance regarding various warrant articles.
7. Article 12 is unlawful on four bases:
(i) it is inconsistent with the Town’s Comprehensive Plan, 30-A M.R.S. §
4352(2);
(ii) it is unlawful spot zoning;
(iii) it is inconsistent with the Maine Department of Environmental Protection’s Model Shoreland Ordinance guidelines and other provisions of Maine law regarding zoning regulations of shoreland properties, 38 M.R.S. § 438-A(1) and (2); and
(iv) it is inconsistent the other provisions of the LUO, such that the new terms of Article 12 cannot be successfully incorporated into the balance of the LUO.
8. On information and belief, various Town staff members are now engaged in a futile attempt to reconcile the various inconsistencies in the June 2017 Town meeting vote, an exercise that will result, at best, in a series of further LUO amendments that represent “best guesses” by the Town staff as to what the electorate voted to do at the June 2017 Town meeting and which, at worst, will result in an adoption by administrative fiat of LUO amendments not truly chosen by the voters.
9. Plaintiffs’ use, value and enjoyment of their real properties in Bar Harbor will be substantially and adversely affected by the detrimental effect on their scenic ocean and harbor views, additional lighting, additional noise, additional highway traffic on the land areas adjacent to the old ferry terminal property, and similarly negatively affected by the increased non-maritime retail and commercial uses on the Bar Harbor waterfront.
10. All Plaintiffs, except Mr. Ruger who is a registered voter in New Hampshire, voted at the 2017 June Town meeting against Article 12 and have had their property values adversely affected by the passage of Article 12, and so Plaintiffs have standing to bring this action pursuant to the Maine Declaratory Judgment Act, 14 M.R.S.A. §§ 5951-63.
WHEREFORE, Plaintiffs respectfully request that this Court declare the terms of the Article 12 at the June 13, 2017 referendum to amend Bar Harbor’s LUO to be invalid and order such other relief as justice requires including, without limitation, an award of costs and attorney’s fees.
DATED at Portland, Maine this _____ day of August, 2017.
By:___________________________
JENSEN BAIRD GARDNER & HENRY Ten Free Street P.O. Box 4510 Portland, ME 04112 (207) 775-7271
