BANGOR, Maine — Against the backdrop of an ongoing lawsuit against the city and the business of a former city councilor, the City Council on Monday tabled an ordinance to amend the city’s zoning codes as they relate to landscaping operations.
“If we adopt this ordinance the way it is, we are basically short circuiting the court case and … telling the neighbors your case is done,” Councilor Joe Baldacci said, seconding the motion from Councilor Sean Faircloth to postpone.
Faircloth said he wanted city officials to take another look at the standards being applied to landscaping operations to ensure the amendments would “stand the test of time.”
The motion to postpone narrowly passed in a 5-4 vote with Councilors Faircloth, Baldacci, Patricia Blanchette, Ben Sprague and Gibran Graham voting in favor. Councilors Pauline Civiello, David Nealley, Josh Plourde and Nelson Durgin dissented.
According to city officials, the ordinance would have clarified and regulated landscaping businesses in the zone known as the rural residence and agriculture district. The city allows landscaping operations in the district under the umbrella of agriculture, but the code does not specifically define landscaping.
The zoning change is set against backdrop of a lawsuit against the city and former City Councilor James Gallant, who runs a landscaping business from his home at 2100 Ohio St. Galant did not seek re-election when his term ended in November.
Filed Nov. 10 in Maine Superior Court by residents of three neighboring properties — including Rep. John Schneck, D-Bangor, and his wife, Mary Tedesco-Schneck — the suit asks the Maine Superior Court to override the city’s determination Gallant’s business is allowed on grounds that “landscaping is not enumerated as a permitted or conditional use in the district.”
The lawsuit could have implications for more than 20 other landscaping operations in the city Gallant said employ more than 150 workers and generate more than $5 million in annual sales.
“This isn’t really about me, and this isn’t really about my neighbors. It’s about a much larger picture that needs to be discussed,” he said.
Assistant City Solicitor Paul Nicklas argued during an April 21 meeting of the city’s Planning Board that, if the ordinance is not changed and the city loses the lawsuit, several other landscaping outfits could be forced to relocate.
Meanwhile, attorney Edmond Bearor, who represents the neighbors, argued the city was attempting to craft an ordinance that exactly fit Gallant’s business as his clients seek to prove that business does not comply with code.
“Let’s not kid ourselves. This is about making the ordinance fit the square peg of a former city councilor into a round hole by changing the hole and making it a square hole,” he told the Planning Board last week.
“We’ve spent a lot of time and effort, and now the city is changing the rules,” he said.
Nicklas told the Planning Board that, if the city approved the amendments, “there would certainly be an argument” that could make the case go away. He also argued it may be better to push the changes through to avoid unnecessary legal expenses.
“The difficulty is if you allow the litigation to go through to its end, it can take an enormous amount of time and people’s resources,” he told the Planning Board
“If you’re just going to change the ordinance at the end anyway, now everyone is out all that money,” he said.
The Planning Board did not agree, voting 6-1 last week against against recommending City Council approval of the ordinance.
“It looks like a put-up job, and I have a real problem with us changing the ground under which any litigation may be based,” Planning Board member Charles Boothby said. Board Chairman Paul Bolin cast the only favorable vote for the amendments.
Meanwhile, the council’s Business and Economic Development Committee took the opposite stance, passing the amendments forward to the full council. Only Councilor Pat Blanchette voiced opposition, calling for the matter to be tabled until after the court rules on the lawsuit.
As proposed, the ordinance defined landscaping as “onsite and offsite business activities related to planting, bed preparation, installation of landscape materials and care and upkeep of the landscape after such installation.”
The definition includes the application of and storage of fertilizers, pesticides, herbicides and disease control agents by a licensed person and the storage of materials and equipment related to the performance of landscaping.
It requires that facilities, equipment and storage areas be located at least 150 feet from any residential building on another parcel and requires landscaping operations provide at least one parking space for every 1.5 employees as well as customer parking, though it does not specify how much parking should be reserved for customers.
In July, Gallant applied for and obtained a certificate of occupancy from the city to run Bangor Lawn and Landscape from his 1.5-acre home. Neighbors challenged that decision during a September 2014 hearing before the city’s board of appeals, which rejected the appeal in a 2-2 vote.
The neighbors later filed a request for reconsideration, providing photographs as evidence at a later meeting, but the board denied the request.
Under city code, agriculture is defined as “the use of land and structures for soil tillage, for the production of crops, dairying, pasturage, agriculture, horticulture, floriculture, raising of fur bearing animals and animal and poultry husbandry and accessory uses”
Gallant said he plants trees, shrubs and flowers on his property as displays to potential clients, but plaintiffs argued that many of those plantings existed before Gallant moved in.
Plaintiff Mary Tedesco-Schneck told the Planning Board she had asked the city to consider a minimum lot size of 5 acres for landscaping operations, but that request was not included in the proposed amendment.
She described “mechanics working in the garage at all hours with a lot of noise” and said that, in the winter, there are trucks coming and going with salt and plowing equipment.
“There’s a lot of noise and activity,” she said. “Also, we’re worried about the safety. It was a lot going on on a very small piece.”
Nicklas said any landscaping businesses already permitted in the district would be grandfathered and immune from restrictions in the amendment if they do not meet them.
On March 3, Justice William Anderson denied a defense motion to dismiss the lawsuit on grounds that it was not filed in a timely manner.
During Monday’s meeting, Nealley defended the city’s position, saying the proposed changes were a direct result of complaints from the plaintiffs.
“It’s because of state Legislator John Schneck and his wife that the city went to extra cost (and) extra time to come up with some kind of ordinance so that at least in the future, if there were such issues, they would have a more restrictive ordinance for landscaping,” he said.
Nick McCrea contributed to this story. Follow Evan Belanger on Twitter at @evanbelanger.