Split Board Recommends Removal of Two-Thirds Rule
BAR HARBOR—The Bar Harbor Planning Board gave its recommendations to voters during a marathon four-hour meeting on Thursday afternoon, September 7 and recommended that town voters do not vote for retail marijuana sales and cruise ship disembarkations, both citizens’ petitions.
The planning board is required to give its opinion to voters on issues that involve the land use ordinance which appear on the town ballot. These issues will be determined by the voters at a special town meeting on November 8. The town council and warrant committee also vote to recommend (or not) on certain licensing and/or land use ordinances. All these recommendations are on the voters’ ballots.
The planning board took a decisive vote of 5-1 with one abstention on the proposed land use ordinance which if passed would allow recreational marijuana retail sales in multiple districts, which are mostly downtown. The vote was against the adoption of the ordinance change. Vice Chair Ruth Eveland voted against the motion, so in favor of the change. New member Calistra Martinez abstained. As a new member, Martinez didn’t feel she did her due diligence on the warrant issues and abstained from voting in all of them. How Martinez’s abstentions will be counted and shown will be verified with the town clerk. They may show up as voting with the majority on each issue.
Member Earl Brechlin began the bulk of the discussion, asking about the ordinance’s creation of the new district, Shoreland General Development 3.
Town Planner Michele Gagnon said it is a fictitious district and error by the petitioners and that the district is not defined by the land use ordinance and if passed, retail marijuana establishments could not exist there. With a two-third majority from both the planning board and town council that language could be amended, she said.
In a perfect world, would not this be written correctly the first time, Brechlin asked.
Member Joseph Cough said that he hasn’t seen that kind of two-third fix come forward on other issues for things as simple as a misplaced comment in an ordinance, so he doesn’t expect that to happen in this case if the ordinance change passes
Board Secretary Elissa Chesler asked what would happen if permitting was allowed by the land use ordinance, but then the licensing ordinance concerning marijuana failed at the same time. Eveland said the council was not happy with the permitting piece of that, but that the planning board is only allowed to look at the land use piece, which is districting retail marijuana stores.
Chair Millard Dority said, “I just think it’s a mess.”
Dority said that he supports the idea of recreational marijuana retail stories, but that the ordinance change and petition is so poorly written that it’s hard for him to approve it. Brechlin said part of the board’s purview as stewards of the land use ordinance is to get it right. Eveland said she’s supporting the ordinance because a good faith effort was made, but agreed that it was frustrating when language was not clearly written and creates more difficulties for town staff. There is always an opportunity for an iterative improvement, she said.
“I think it’s a good enough improvement,” she said of the changes. Another petition was presented earlier this year and was not voted in by voters.
Chesler said she doesn’t think marijuana retail stores is a good use within the proposed districts and that 5,000-square feet is large and would be very large in those districts. She added that the use doesn’t seem to fit for Bar Harbor where not all tourists stay in town and worried about recreational cannabis’ impacts on the area as tourists drive through the national park or across the island, trying to navigate unfamiliar places and roads that were new to them.
“This is juxtaposing retail cannabis with tourism,” she said. “It’s bringing that use right in proximity to an area where people are more footloose and fancy free.”
Cough said, “Whether you agree with it or not, this creates a different ballgame.”
Board member Zachary Soares said there’s no incentive to create clearer language if the town or its boards keep saying “let’s fix it later.” He added, “We have to do the job of showing people want we want and expect the first time.”
Dority said it’s very difficult to adopt a recommendation on an amendment that they know already that they have to change.
Other Warrant Articles
Cruise Ship Disembarkations
This citizens’ petition creates a daily limit on cruise ship disembarkations into Bar Harbor to 1,000 and a fining system for any passengers over that number, but it was not the large deduction in passengers that worried planning board members as much as the petition’s placement in the land use ordinance.
According to Law Insider, a land use ordinance typically involves development and zoning codes and “directly governs the use of land,” but doesn’t involve financing, development fees, or nuisance control.
Brechlin said he doesn’t believe the petition belongs in the zoning ordinance but should be in a regular ordinance and that he can’t imagine the code enforcement officer doing passenger counts and by placing the plan within the ordinance, it doesn’t allow flexibility. Cough, Chesler, and Eveland said they shared that perspective.
“A drastic cut like this is a horrible way to have our land use ordinance used,” Cough said.
Eveland stressed that the difficulties on the staff if the petition passes would be overwhelming and not able to be implemented. She said she’s desperately hoping that the management plan recently created by a town task force will be the solution the town needs since that plan can be reviewed easily and at a regular basis, therefore more quickly adapting to the concerns and goals of the citizenry.
Eveland said that task force plan about limiting cruise ships on a monthly basis which was created by the town council is a good first step as did Cough. Cough also worried about unending and huge lawsuits.
Chesler asked if current properties that are tendering would be restricted in the future or retroactively protected. Gagnon said that in a warrant committee meeting, Eben Salvatore (warrant committee member and employee of Ocean Properties) alluded that present practices would be grandfathered. Gagnon was unsure if they would.
At the end of the discussion, a unified planning board voted 6-0 that it ought not to pass. Martinez abstained.
The planning board voted 4-2, with Martinez abstaining, to recommend removing the two-thirds rule from the land use ordinance. Dority and Cough voted against the motion.
Currently, if the planning board doesn’t recommend a land use ordinance amendment, there must be a two-thirds majority amongst the voters for that amendment to pass. The theory behind this regulation is likely because the planning board members spend significant time studying the complicated and lengthy land use ordinance and are considered experts on it within the town government structures.
Erica Brooks, a former member of the planning board is suing the town after the vacation rental vote, which split rentals into two categories and passed 1,260 to 840 in November, 2021, which is a 60 percent majority. Prior to the vote, there was discussion if a super majority was needed for it to pass since the planning board had a tie vote, which was not the affirmative to create a simple yes. The town attorney said that a simple majority was fine.
The request for the two-thirds requirement removal then came from the council and is up for the voters to decide in November.
Eveland said she supported the removal of the two-thirds requirement because it is an anomaly in how the town does its business. She believes it over-weights the votes of the members of the planning board.
“There has often been a perception that there needs to be an engineered kind of work-around around how town decisions are made,” she said. “Having this super threshold to be passed makes that worse.”
She said she hoped the comprehensive planning process which is currently underway will reduce highly contentious battles around issues.
Cough said the two-thirds majority has been standard practice for the last forty years since the land use ordinance was adopted by the voters. He said that the town planner just talked during the current meeting how the council and planning board can tweak ordinances with a two-thirds majority vote on both bodies, which is an example of how two-thirds is not an anomaly within the town’s process. He added that it is a small check on the council’s power and if the change passes, he believes it reduces the role of the planning board to a body that just reviews things and then changes to the land use ordinance will have a much smaller hurdle.
Brechlin said he had the opposite take than Cough’s and that people currently see it as a run-around the council. He said he’s gone back and forth about the change but now supports a simple majority.
Chesler said the composition of the planning board is influenced by the town council which appoints them individually. She said it is possible that the planning board becomes significantly departed from the will of voters. She said that the two-thirds requirement is somewhat standard in Massachusetts and that when she met with the appointments committee to be put on the board, she was asked her feelings on the two-thirds majority rule. When asked by the committee how she responded to that, she said that she doesn’t think she gave an opinion and that it wasn’t used as a litmus test since it was prior to the current controversy and lawsuit pertaining to the two-thirds rule.
Cough said he’s shocked that the council put their thumb on the process of nominating with the question of the two-thirds issue. He said it would have been different if a citizen brought this up, but it was brought up by the council after controversy over the short-term rental changes.
Dority said he was sorry “that this issue has come down to an issue of power.” He said it’s not about power, and that the planning board’s job is to do sound planning for the town.
He said until recently the two-thirds vote has never been an issue. “It would seem to me that since the council appoints us” that the board members should understand the council’s goals for the town. But council members can change, and goals can change, and the two-thirds rule is a check and a balance and its change should not be taken lightly.
“I just don’t think it’s our job to satisfy 50% of the people plus one,” he said. “Our job is to make decisions in the best interest for the town of Bar Harbor.”
Appendix A – Historic Properties
The board voted to approve the changes for historic properties, 6-0, with Martinez abstaining.
The Bar Harbor Planning Board held a public hearing and completion and compliance review for the Jackson Laboratory’s application for a new childcare center, which would serve Jackson Laboratory employees. It would be positioned at the south end of the current campus. The 6,800-square-foot building would be single-story and wood framed, meant to serve 53 children and 20 staff.
Planning Board Secretary Elissa Chesler, an employee of the lab, recused herself from the discussion and the rest of the board unanimously approved it after finding the application complete.
The lab said that recruitment and retention is difficult on MDI. It would be a Jackson Laboratory owned property, but operated by the Down East Family YMCA in Ellsworth and said there were 40-50 children of employees who needed childcare.
The board unanimously voted that the application was complete.
During the public hearing, Peter Farragher, CEO of the Down East Family YMCA, said the Y was blessed to be part of the project and with the lab.
Cough asked, “Is the project only for Jackson Laboratory employees or only Bar Harbor Jackson Laboratories?”
Those first served would be full-time Jackson Laboratory employees who work in Bar Harbor, then other lab employees, and then it would be open to the public. The application was unanimously approved with some conditions about receiving certain materials.
Red House Farm
The Finback on Cottage, LLC, is looking to divide a 27-acre lot into three two-acre, single-family lost, with a 21-acre lot to be retained. Two of the lots have road frontage on Hadley Point Road. The project is at 16 Hadley Point Road.
Chesler asked about future redevelopment of the lot and how the other buildable lots would be accessed, seeing that it is not addressed currently in the application. The representative for The Finback on Cottage said that there is still access to the land-locked property if those lots are developed via frontage on Bayview Drive or Hadley Point Road.
The board unanimously found the project compliant. There was no public comment and the application was approved with some conditions about receiving certain materials.
Blue Nose Inn
The Bluenose Inn applied for the construction of a new four-story hotel building with approximately 9,725 square feet in the approximate location of the structure that burned in February 2022. There will be 21 suites. It’s a slightly larger footprint and would reduce the pavement of the parking lot for an overall reduction of impervious area.
The board unanimously found the project compliant. It was approved unanimously with some conditions about receiving certain materials.
Nature’s Gift Subdivision
Kay and William Koplovitz Trustees are requesting to subdivide a 25-acre lot at 1115 State Highway 3 into five lots.
Mr. Koplovitz told the planning board members that there was a building foundation on the site and he and his wife agreed to not build in the area of that foundation and create an easement around it.
Terramor Employee Campsite
The Terramor Employee Campsite at 1453 State Highway 102 is asking to reconfigure the existing employee campsite area to allow them to remodel three existing trailers that are used for employee campsites as well as two new trailers and one two-unit trailer and an employee mess hall trailer, laundry trailer, and laundry building. If approved, the change would provide 14 parking spaces for Terramor’s employees. The area in the campground is where a Wellness Tent had been permitted. It is converting 26,694 square feet of existing employee area to reinforced turf and adding a new septic system.
The application spawned some discussion about if trailers are permanent structures in a campground or are not permanent structures. The trailers have wheels underneath the structure and there are RV pedestals at each of the Terramor sites. In the application they are called employee campsites and employee trailers. The board looked at the definition of what is a recreational vehicle. Recreational vehicles require vin numbers and wheels on the ground.