Judge’s Short-term Rental Challenge Appealed

Case focuses on two-thirds rule and original 2-2 vote


MAY 5, 2023

BAR HARBOR—Erica Brooks and Victoria Smith have filed an appeal in their lawsuit against the Town of Bar Harbor.

The lawsuit centers on whether or not the town had misinterpreted its charter and code when voters approved a short-term rental ordinance. Part of the issue was whether or not that vote needed a two-thirds majority to pass.

That question occurred because at the time, the town rules required a two-thirds majority by voters if the Planning Board voted not to recommend a land use ordinance amendment to voters. The vote at the Planning Board level was 2-2. One member was not able to attend because of a family member’s medical issue. She had expected to be able to attend remotely, but those rules had not yet been in place for town votes.

The amendment created a town cap on the number of short-term rental properties where those properties were not a primary residence.

At the time, the town attorney Ed Bearor interpreted this as an “abdication” of the Planning Board’s responsibility. He said that the 2-2 vote was neither a recommendation nor not a recommendation. Judge Robert Murray agreed in an April 21 ruling in favor of the town.

The appeal was filed May 4.

Last week, Brooks and Smith released a statement about the ruling.  

“We are disappointed in the process and the outcome and are evaluating our options with our attorney which include a possible appeal,” the women said. “We are grateful for all the participation and contributions to date and anyone who feels their rights as a homeowner have been affected is encouraged to stay in touch as we move forward. Homeownership and property owner rights are incredibly important to us, and we will continue to work with our legal team to ensure the process is fair and just. Land use ordinances are in place to protect everyone and there are checks and balances in place within our Town Charter to ensure things are fairly vetted and voted on. Doing things the correct way and standing up for property owner rights have always been our motivation.”

Town voters approved a change to the two-thirds majority rule in the last election so that now a Planning Board vote against a recommendation for a land use amendment change doesn’t trigger anything more than voter majority approval. Brooks is a former Planning Board member.

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.”


To read our original story about this, click here.

For an earlier story about the two-thirds rule (with links to other stories, click here.

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