Legal Complaint Against Zoning Article 12

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
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,
Civil Action
Docket No.
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. §
(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:_____________________________ William H. Dale, Bar No. 408 Attorney for Plaintiffs
JENSEN BAIRD GARDNER & HENRY Ten Free Street P.O. Box 4510 Portland, ME  04112 (207) 775-7271