On Tuesday, Bar Harbor residents will be asked, for the second time in five years, to make massive changes to their land use ordinance. They also will, by court order, have a chance to bring clarity to that ordinance when it comes to the location of large electrical substations within the town. Residents should heed the words of George Santayana: “Those who do not remember the past are condemned to repeat it.”
The last attempt to massively revise the town’s land use ordinance in 2010 led to a lawsuit against the town and a well-reasoned decision against Bar Harbor by Justice Ann Murray. She found that the town had repeatedly misled its voters in the notices it published about these zoning changes. In her January 2013 decision, she repeatedly criticized the town for advertising zoning changes as occurring in but a few districts when changes were being effected town-wide. I had hoped that the town would learn from these mistakes.
Instead, the town has placed before the voters Article 2, which is advertised as a simple reformatting of the land use ordinance with no substantive changes and with only procedural streamlining for developers. Only after careful reading did I discover that Article 2 would allow large bed-and-breakfasts, hotels and motels throughout the Town Hill Residential District where previously they had been limited to a small portion of that district; would allow fish, poultry and meat processing plants in three downtown districts; and would allow electrical substations in nine residential, historic and shoreland districts by its reclassification of the phrase “public utility installation” as a use, rather than a mere activity.
As in 2010, there has been no notice to the voters of these serious changes. Every change favors developers at the expense of residents. The changes that have been noticed have a consistent theme: restrictions of residents’ rights and enlargement of the privileges of developers. A citizen who now can formally appeal a residential subdivision to the Zoning Board of Appeals (a simple process that does not require a lawyer) would have to hire a lawyer and proceed to Superior Court. A citizen who now can challenge the completeness of a developer’s application at a public hearing before the planning board would have to raise concerns at a private meeting with the code enforcement officer.
In May and June 2014, over 200 Bar Harbor residents turned out at meetings that sought to stop Emera Maine from placing a 26,000-square-foot, 30-foot-high open air electrical substation in the middle of a densely packed residential neighborhood. Emera Maine listened and, after 10 months of meetings with Bar Harbor residents, has elected to build the substation closer to downtown Bar Harbor with most of the equipment enclosed within an attractive building and the remaining equipment considerably downsized.
In contrast to this cooperative attitude, the town has been intransigent. It refused to close the loophole that allowed electrical substations in residential neighborhoods — a change that could prevent future substations from ever being built in those districts. Therefore, seven citizens circulated petitions in late January and obtained over 700 signatures. These petitions define “public utility installation” as a utility hookup and permit that activity throughout the town, and define “public utility facility” as electrical substations and similarly large facilities, such as natural gas holding tanks, and permit them in the districts in town that create the demand for energy. Although the Bar Harbor charter required that the Town Council place these two simple definitions on the June 9 ballot, the council refused. Justice Robert Murray held a hearing on April 29 and issued an order by noon the next day mandating that the council adhere to the charter it took an oath to uphold and place Articles 3 and 4 on the June 9 warrant.
Both this litigation and the litigation that resulted in Justice Ann Murray’s decision setting aside illegal 2010 changes to the land use ordinance were fiercely contested with taxpayer monies. Through a Freedom of Access Act request to the town seeking all 1099s issued to law firms over the six-year period of 2009 through 2014, I have determined that the town of Bar Harbor has spent $684,801.32 on lawyers in that six-year span. A municipal government that complies with the law need not spend so much money unsuccessfully defending its actions.
The voters of Bar Harbor can reaffirm that we are a government of laws and not men by rejecting Article 2, which repeats the same mistakes of the “bait and switch” zoning changes of 2010, and adopting Articles 3 and 4, which, together, would make it impossible to build large electrical substations in residential areas of Bar Harbor.
Arthur Greif lives in Bar Harbor and practices law in Bangor. On one occasion, he served as legal counsel for the town of Bar Harbor.