Split town council moves two-thirds rule to November vote
BAR HARBOR – At its August 16 regular meeting, in a 6-1 decision, the Bar Harbor Town Council moved a vote to abolish the two-thirds rule to the voters to decide in November. Councilor Erin Cough voted against the measure.
For some amendments to the land use ordinance, the Bar Harbor Planning Board initially hears the proposed change, holds a public hearing, and then recommends its adoption or to not adopt it. If the board does not recommend adoption, there is a two-thirds vote requirement when the change goes before voters. If the planning board does recommend adopting the change, a simple majority vote is needed.
Ruth Eveland, planning board member, spoke in favor of the simple majority because, she said the two-thirds majority “over weights the votes of the planning board in committee decision making.” She finds it fundamentally undemocratic and an anomaly in how the town does its business.
She said there’s a perception in the community that something has to be worked around the decision making authority of the planning board. The planning board in Bar Harbor consists of members appointed by the town council and they focus on site plan management, applications and reviews and typically must be well-versed in land use ordinance questions.
What actually is the land use ordinance? One of the simplest definitions is from Law Insider and it’s “an ordinance or regulation of general application adopted by the municipal legislative body which controls, directs or delineates allowable uses of land and the standards for those uses.
According to the Merriam-Webster Dictionary, the two-thirds rule is “a political principle requiring that two thirds rather than a simple majority of the members of a politically organized group must concur in order to exercise the power to make decisions binding upon the whole group.”
While the super-majority may not be common in Maine towns, it does exist in other levels of the government in the US. Two-third rules are required in Congress to expel a member or to enter treaties. Similarly, there needs to be a two-thirds concurrence of members for impeachment when tried in the Senate, and it is also invoked when some bills become law after certain steps occur or Papal elections. Similarly, modifications to constitutions or a government’s ruling doctrines can have supermajority rules, which are supposed to be meant to ensure the minority’s rights are not eroded. While there are a number of different types of supermajorities, the two-thirds requirement is the most common in the US. Supermajority requirements exist throughout the world and in the United Nations.
THE COUNCIL AND PUBLIC WEIGH IN
“Every vote counts and every voice is heard in this town by what just happened tonight—a public hearing,” said Cough. There are multiple ways that everyone has a voice, she said, however, as a representative of the people, she has no problem having a two-thirds majority and believes it is something that should remain.
“It’s the town council and the boards that are enacting the laws,” she said. Councilors appoint the planning board members and those members have to have knowledge of the land use ordinance, and it’s a thorough process. She added, “I tend to like to trust the people who are appointed by this council . . . so for me the two-thirds majority makes sense.”
Millard Dority, the current planning board chair, said he served 12 years on the board through the 1990s. “I can’t figure out where it is coming from,” he said, talking about the council’s request for a change to the rules. He asked if it was a systemic problem that caused the council to push forward with this change.
“It seems to me that Council appoints members of the planning board,” he said. “We’d want to keep that safeguard where something did go wrong,” in relationships between the council and planning board, he said. “I think we should be careful,” he said, saying the founders put it there. “I’d hate to flippantly let it go.”
Erica Brooks, former planning board member, said of taking away the two-thirds vote, “It seems to me it removes all checks and balances. We have a planning board for a reason with skilled members,” who understand the ordinance, she said. She echoed Dority’s question of where the topic and change is coming from, saying that there is an active lawsuit against the town, which deals with the two-thirds majority, and she is a party in that lawsuit. The timing is odd, she said, to take away this rule seems like it could create more problems than do good. She said she respected their positions as councilors, but felt that the change was a dangerous and slippery slope that could have unintended consequences.
Bar Harbor resident Sherri Dyer said that it was interesting that people seem unsure of the history of the two-thirds rule and need for the change when Town Clerk Liz Graves explained part of the history at the town council’s October meeting. Up until 1975 every single land use ordinance change needed a two-thirds majority, Dyer said. “It seems clear in 1975 in the interest of streamlining” that absolute two-thirds majority requirement for land use ordinance amendments changed and the requirements turned to a simple majority vote when the town’s council and planning board supports the change. Dyer is against further streamlining.
Another resident worried that one planning board member’s vote is worth hundreds of regular voters, believing it gives too much power to the planning board to the detriment of residents. She said the two-thirds requirement was paternalistic and anomalous.
Peter Miano, a new Bar Harbor resident, said, “The reason that people have this kind of rule is to make sure all the voters are represented. Eradicating the super majority could add to divisiveness and in a town this small, it can’t help create unity.”
“Even I think it’s a bad idea to get rid of the two-thirds decision,” said Stephen Coston, who used to be on the council and said he was known as the less rules member.
Councilor Matthew Hochman said that the two-thirds rule has rarely been an issue since 1975. He said that it could be a check on the council, but with no notes on its inception, there’s no way to verify that. “What we’re deciding tonight is if this should go before the voters.” He said he could see why it makes sense to have it but also why it makes sense to remove it.
Councilor Jeff Dobbs said that tonight’s explanations for and against the motion were the best arguments he had heard about it. He said, “It still raises the question of why the hell is it there in the first place.” He added that he will be voting against its removal at the polls.
Councilor Joe Minutolo said the vote is the true litmus test for affairs in this town. He said it’s quite a threshold to attain. He agreed that Bar Harbor is one of the only towns in the state that has a two-thirds majority in place. “Let’s see what rises to the top,” he said of the November vote.
For more about the Bar Harbor Planning Board, click here.
For a global historical analysis of supermajorities, click here.
The town council’s most recent packet is here.
Editor’s Note: This writer’s husband spoke at the council meeting against the rule change. His statement is not included in this article, and like many couples they sometimes agree and sometimes don’t.