Visitors to Cadillac Mountain in Acadia National Park look out over Bar Harbor on Thursday, July 22, 2021. Credit: Josh Kauffman / BDN

A real estate agent and former planning board member is suing Bar Harbor over its new regulations on vacation rentals, claiming they needed to pass by a two-thirds majority.

The lawsuit from Erica Brooks, a broker with the Swan Agency who served on the board while the town was working on the regulations that passed last month, contends the town misinterpreted or misapplied its charter and town code when it adopted the rules, which are more restrictive on rentals that are not owner-occupied.

“The town has chosen the wrong path here,” Brooks said Thursday.

Bar Harbor is one of several cities and towns along the Maine coast that have moved to rein in vacation rentals in recent years. The changes passed with just over 60 percent of votes in the November election with the aim of slowing the conversion of year-round housing to lucrative vacation rental properties in the prominent tourist town.

Under town code, the planning board must give a majority recommendation on any proposed land-use amendments. If the board recommends a change, the amendments need a simple majority to pass at the ballot box. If it does not recommend an amendment, it requires a two-thirds majority.

The planning board failed to come up with a majority opinion in September and was left with a two-two tie. One member was absent while she attended a medical appointment with a family member. Town attorney Ed Bearor later told town officials that the tie meant the amendments only needed a simple majority.

Brooks, who had been a critic of the proposed changes and was not reappointed by the Town Council to the board in July, now claims that a two-thirds majority should have been the standard because a tie vote means the board did not recommend the amendments.

This interpretation had been brought up before and was previously disputed by Bearor. In many other municipal matters, tie votes mean items do not pass, but Bearor argued this was different. His opinion hinged on the fact that the board is required to give a majority recommendation.

“The result of a tied vote is that the Planning Board abdicated its responsibility and makes neither a recommendation that it ought to pass nor a recommendation that it ought not to pass,” Bearor wrote in a memo to the Town Council.

Brooks, in her Nov. 30 filing, has asked a judge to reverse the adoption of the regulations and remand it back to the town.

The voter-approved rules created two categories of rentals, those that are owner-occupied and those that aren’t. The latter is now capped at 9 percent of all dwelling units in town. All existing vacation rentals can continue to operate, even if the town is above the cap.

In order to get the number down gradually, the regulations prohibit transfers of rental licenses, meaning if someone sold their rental property, new owners would not be able to legally rent it out until the town goes back under the cap.

The transferability piece was added late in the process by the town council and was one of the main points of contention with planning board members. Brooks said she decided to get involved because she believed in protecting property rights and following correct procedure.

“I feel I have to stand up for that,” she said.

Cornell Knight, the soon-retiring Bar Harbor town manager, said the challenge was a “waste of taxpayer funds” similar to other lawsuits waged unsuccessfully against the town.

No hearings on the suit have been scheduled yet, Brooks said.