Blanchard v. Town of Bar Harbor, BUSINESS & COUNSUMER DOCKET DOCKET NO. BCD-CV-17-52
| Decision Date | 18 December 2018 |
| Docket Number | BUSINESS & COUNSUMER DOCKET DOCKET NO. BCD-CV-17-52 |
| Parties | JAMES BLANCHARD, et al., Plaintiffs, v. TOWN OF BAR HARBOR, Defendant. |
| Court | Maine Superior Court |
CUMBERLAND, ss.
This case was presented to the Court for decision without trial on a stipulated record and the written briefs of the parties. The Court also heard oral argument on the matter on November 7, 2018. William H. Dale, Esq. appeared for Plaintiffs and Edmond J. Bearor, Esq. appeared for Defendant.
This case involves a parcel of land located at 121 Eden Street in the Town of Bar Harbor, which is designated by Bar Harbor as Tax Map 231, Lot 004 (the "Ferry Terminal Property") and was re-zoned pursuant to a vote of the annual Town meeting on June 13, 2017 (the "Zoning Amendment"). (Stip. ¶ 1.) In this action, Plaintiffs1 seek a declaratory judgment declaring that the Zoning Amendment is invalid on the grounds that it is not pursuant to, or consistent with, the Town's comprehensive plan and, furthermore, is not in accord with Maine statutes and regulations governing shoreland zoning. The Defendant, the 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. (Stip. ¶ 5.)
Over a year before the vote on the Zoning Amendment, on March 15, 2016, John Henshaw of the Maine Port Authority wrote to Robert Osborne, the Town's Planning Director, regarding the Maine Department of Transportation's planned lease with purchase option2 for the Ferry Terminal Property. (Stip. ¶ 17.) Thereafter, the Town Planning Board took up the issue of a proposed amendment to the Town's local zoning ordinance and shoreland zoning ordinance (collectively, the Land Use Ordinance or the "LUO") at its meeting on April 6, 2016. (Stip. ¶ 18.) Between April 6, 2016 and March 7, 2017, the Planning Board, Town Council, and Mr. Osborne met and corresponded multiple times to discuss and revise the language of what would become the Zoning Amendment. (Stip. ¶¶ 18-29.) These meetings and correspondences included a site visit to the Ferry Terminal Property by the Planning Board, joint meetings of the Planning Board and Town Council, and public hearings. (Stip. ¶¶ 19, 21, 24-25, 28.) Mr. Henshaw also continued to correspond with Mr. Osborne regarding the Zoning Amendment. (Stip. ¶¶ 17, 28.)
In Bar Harbor, pursuant to the Town's charter, the exclusive legislative authority to adopt or amend the LUO is vested in the Town meeting. (Stip. ¶ 7.) The Town's charter requires electors to act on referendum questions, including amendments to the LUO, by voting on "articles," i.e. individual questions, on the "warrant," i.e. ballot, at a Town meeting. (Stip. ¶ 8.) On March 7, 2017, the Town Council voted to place various articles on the warrant, including Article 12, which asked electors at the annual Town meeting whether they were in favor of the Zoning Amendment. (Stip. ¶¶ 10, 29, 32.) At the Town meeting, electors voted to pass Article 12, and the LUO was amended consistent with the Zoning Amendment. (Stip. ¶¶ 1, 11-12, 32.) A competing measure—Article 13—was defeated. (Stip. ¶ 11.) On July 18, 2018, the Maine Department of EnvironmentalProtection ("DEP") issued an order approving3 the Zoning Amendment (the "DEP Order") but referenced deficiencies in other provisions of the LUO that had been identified in a prior DEP order issued in 2012. (Stip. ¶ 33.) Those unrelated deficiencies are not relevant here.
The intent underlying the Zoning Amendment was to allow cruise ships to use the Ferry Terminal Property. (Stip. ¶ 13.) The current practice for cruise ships visiting Bar Harbor is to anchor the ship in the harbor and bring passengers ashore using tenders, or smaller boats. (Stip. ¶ 14.) To further the Town's goal of allowing cruise ships to use the Ferry Terminal Property, the Zoning Amendment effected three changes to the LUO: (1) the creation of a new "Shoreland Maritime Activities District," which would apply to the Ferry Terminal Property; (2) the addition of definitions for "passenger terminal" and "parking deck" in the LUO at section 125-109 (Definitions); and (3) a map amendment assigning the Shoreland Maritime Activities district to the Ferry Terminal Property. (Stip. ¶ 12.)
Before reaching the merits of this case, the Court must consider two threshold issues raised by the Town: (1) whether there is a genuine controversy ripe for judicial decision and (2) whether those plaintiffs whose properties are outside the Town lack standing to challenge the Zoning Amendment.
Plaintiffs' complaint brings one count against the Town, for a declaratory judgment pursuant to Maine's Declaratory Judgments Act, 14 M.R.S. §§ 5951-5963. Maine's declaratoryjudgment act provides that "any person . . . whose rights . . . are affected by a . . . municipal ordinance . . . may have determined any question of . . . validity . . . arising under the . . . ordinance . . . ." 14 M.R.S. § 5954. The Declaratory Judgments Act "may be invoked only where there is a genuine controversy." Patrons Oxford Mut. Ins. Co. v. Garcia, 1998 ME 38, ¶ 4, 707 A.2d 384 (citing Wagner v. Secretary of State, 663 A.2d 564, 567 (Me. 1995)). "A genuine controversy exists if a case is ripe for judicial consideration and action," Id. (citing id.). Ripeness is a question of law. Johnson v. Crane, 2017 ME 113, ¶ 9, 163 A.3d 832. The Court considers two factors in determining whether a case is ripe for review: (1) the fitness of the issue for judicial decision and (2) the hardship to the parties of withholding court consideration. Id. Speculative hardships cannot satisfy this requirement. Clark v. Hancock Cry. Comm'rs, 2014 ME 33, ¶ 19, 87 A.3d 712 (citing Johnson v. City of Augusta, 2006 ME 92, P 8, 902 A.2d 855). However, "[t]he declaratory judgment law does permit anticipatory challenges to a regulation or ordinance to resolve a dispute regarding a planned action, before the matter actually proceeds and the challenged ordinance is applied to the detriment of the plaintiffs." Sold, Inc. v. Town of Gorham, 2005 ME 24, ¶ 14, 868 A.2d 172.
The Court concludes that in this case there is a genuine controversy ripe for judicial review. Plaintiffs seek a declaration that a municipal ordinance—the Zoning Amendment—is invalid. The issue is thus per se "fit" for judicial decision under the statute. See 14 M.R.S. § 5954. Furthermore, this is not a situation where the Town has since further amended its LUO with regards to the Ferry Terminal Property and Plaintiffs seek only a declaration that future actions by the Town might be inconsistent with the Town's comprehensive plan or State statutes and regulations. Cf. Clark, 2014 ME 33, ¶ 20, 87 A.3d 712 (). On the other hand, a judicial declaration of thevalidity of the Zoning Amendment "can only aid the [Town] in making use of its lawful regulatory powers." See Me. Pub. Serv. Co. v. Pub. Utils. Com., 524 A.2d 1222, 1226 (Me. 1987). In sum, the Court is satisfied that the question of the validity of the Zoning Amendment is ripe for judicial consideration. See Johnson v. Crane, 2017 ME 113, ¶ 9, 163 A.3d 832.
The Town next argues that those Plaintiffs whose properties are outside the Town lack standing to challenge the Zoning Amendment. All but four of the Plaintiffs own property outside of the Town in either Hancock, Maine or Sorrento, Maine, both in Hancock County. (Stip. ¶¶ 2-4.) The Town bases its argument on Buck v. Yarmouth, 402 A.2d 860, 861 (Me. 1979), where the Law Court held that a private citizen must generally be able to establish some sort of "particularized injury" resulting from the municipality's action or inaction in order to have standing to challenge its validity—in other words, in order for a plaintiff to have a particularized injury, the municipality's action or inaction must affect them differently than it affects the larger community as whole. Id. at 861-62. Absent a particularized injury, a plaintiff only has standing to challenge a municipality's action if they seek preventative—rather than remedial—relief from the municipality. Id. Plaintiffs respond that (1) they have proven a particularized injury on the stipulated record and (2) that the relief they seek is preventative, and not remedial, in any event. Plaintiffs identify the berthing of cruise ships at the Ferry Terminal Property as their particularized injury and a prohibition on the berthing of cruise ships at the Ferry Terminal Property as the preventative relief that they seek; or as the Plaintiffs put it at oral argument, that they "don't want this ordinance to be allowed to go forward."
The problem with both of Plaintiffs' arguments is that they conflate the actual issue before the Court with what Plaintiffs characterize as the "practical matter" before the Court; i.e.,Plaintiffs' "challenge[] [to] the Town Council's efforts to allow a very large, land-based pier to accommodate very large cruise ships . . . ." (Pl's Br. 2.) The Court acknowledges that the impetus for Plaintiffs' lawsuit is their aversion to a retrofitting of the Ferry Terminal Property to allow it to accommodate large cruise ships, but they have grounded this "anticipatory challenge" to that result in the purported invalidity of the Zoning Amendment. See Sold, Inc., 2005 ME 24, ¶ 14, 868 A.2d 172. In other words, in this lawsuit, Plaintiffs ask this Court to declare the Zoning Amendment invalid: Plaintiffs do not ask the Court to enjoin any imminent future action of the Town. See Buck, 402 A.2d at 862. In this context, Plaintiffs' only injury, if any, can be the injury of living in a town that has enacted an unlawful ordinance. The Town implicitly concedes that this a sufficient injury to confer standing on the four Plaintiffs who own...
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