Changes Will Not Likely Go Before the Voters Until November.
Apr 01, 2026
The Bar Harbor Story is generously sponsored by Choco-Latté Café.
SOUTHWEST HARBOR — Discussion over how to revise the town’s new soil testing ordinance continued this week, as officials acknowledged they will likely miss the deadline to put changes on the June ballot.
The town needs to finalize the language and get legal review before presenting it to voters.
“So, I found out some new information. There was a little bit of a miscommunication that there’s a 60-day window, which is April 10. The Select Board meeting is on the 14, so we missed that window,” Code Enforcement Officer Jarrod Kushla said.
Kushla believes it’s more likely the changes will go before voters in November.
“I don’t think it’s responsible for us to try to push it through,” Kushla said.
Town officials began reconsidering the changes in February.
The ordinance calls for testing of soil contaminants for any property within a half-mile of anywhere the state has deemed “an uncontrolled site” prior to any land use that requires permitting and is meant to protect people from pollution and dangerous substances.
Southwest Harbor voters passed the soil standard changes 554-187, November 4, 2025.
“With the will of the people, this passed overwhelmingly,” Town Manager Karen Reddersen said in February. “Once passed, the town has received a significant number of questions related to scope and geographic impact, defined points of measurement, testing standards, remediation authority, and enforcement. There has also been discussion regarding DEP review requirements of the amended LUO and number of uncontrolled sites as identified by the DEP within Southwest Harbor.”
As written, officials worry it may apply more broadly than intended, potentially triggering testing requirements in areas tied to sites that have already been remediated or for uses that might not disrupt much soil.
There is also grant money to look at the land use ordinances and audit them and also to look at state laws that have been passed and what the town needs to do to its land use ordinance to comply.
THE WORK
At a March 17 workshop, Kushla began reworking the citizen-led ordinance, grappling with fundamental questions about its scope, intent, and unintended consequences such as whether it could restrict development across more of the town than voters realized.
That work continued March 31.
Within Southwest Harbor, the only site considered “uncontrolled” and not remediated by the state is the Worcester Associates landfill property, which is in between Long Pond and the Marshall Brook Road and began in the 1930s with an open burning dump that was used by the Civilian Conservation Corps (CCC) and then the town. It has polluted ground water in the area. However, there are other sites that have been remediated. Part of the concern is that the new rules also trigger extra soil review for the land within a half-mile of those sites.
The Planning Board Vice Chair Lee Worcester was part of both workshops. He is a member of Worcester Associates, which has had a recently approved subdivision (the Trundy Farm Subdivision) in the area of the landfill.
That subdivision is what inspired a citizens’ initiative for new soil testing requirements for builds that require Planning Board approval within .5 miles of state-determined “uncontrolled” sites.
Acadia Disposal District Representative James “Jim” Vallette has appealed that subdivision’s approval. That appeal will be heard by the town’s Appeals Board, April 1.
He is appealing because he believes that the Planning Board had violated multiple sections of the town’s land use ordinance because he believes that the board had illegal meetings, failed to notify abutters, and did not follow due process when considering information from parties other than the applicant.
On March 31, Worcester said that he thought the draft that Kushla has dispersed was excellent, but suggested some potential tweaks. He would delete 1 A, which he didn’t think pertained to subdivisions.
He also had concerns about the need to retest for new uses after three years.
“I assume what that means if you did a soil test today, and it came back negative, and then in four years from now you wanted to do something else that you were going to be moving 20 yards of soil, I would assume at that point you could unless there was some other reason to say that there was some contamination that may have occurred in that four-year period, then you would not have to do one,” Worcester said.
He also suggested tweaking some of the language away from the word “site” and to “materials” instead.
“The spirit of what the town passed was to make sure we dug up contaminated soil, we didn’t contaminate our neighbors, and it caused a big mess,” Chair Eric Davis said. “And we were trying to take steps to make sure we operated in a manner that kept everything clean and tidy. But this seems to infer that we need to remediate the soil. So let’s say we excavated up the soil, kept it on tarps, whatever it took to take, keeping sure it doesn’t erode through, and then we put it back down and cover the clay. We really remediated the soil. But we’ve been responsibly working so that it didn’t contaminate the neighbors. I don’t think at any point we decided we were going to take acres of soil and run it through. There’s no magic wand that’s going to make it suddenly not have lead in it or something such as that. So we’re not really remediating the soil.”
“So my understanding of when it talks about remediating the soil, it’s taking that contaminated soil that you removed and disposing of it at an authorized facility to get rid of that contaminated soil,” Kushla explained.
Others in the public requested a legal review or town-by-town comparison of other places.
A MEMO IN QUESTION
Later in the meeting, Planning Board member John Williams said, “Back in, I think it was August or September, John Larson and I were reviewing Lee’s application.”
He was referring to Worcester’s application for the Trundy Farm subdivision. Larson had been the code enforcement officer at the time.
Vallette interrupted, saying, “Should there be a recusal at this point, if you’re talking about Lee’s application, a conflict of interest?”
“Me?” Williams asked.
Vallette responded, “No, Mr. Worcester.”
“I don’t think so,” Williams said.
“Because you’re talking about the landfill,” Vallette said.
“No, we’re not,” Worcester said.
“He was just talking about your subdivision,” Vallette said.
“Correct,” Worcester said.
“I’m talking about a talk I had with Lee during the application,” Williams said.
“During the application process, ex parte,” Vallette said.
“Yes,” Williams responded.
Vallette continued, “So you had an ex parte discussion with Lee during—”
“I don’t think it would be necessary for Lee to move,” Williams interrupted, meaning Worcester should not be recused from the discussion.
“Was it legal for you to have an ex parte communication?” Vallette pressed.
“I was asking him to see what he had for paperwork for the application,” Williams said.
Vallette asked, “And is that proper?”
“Well, yeah. That’s part of the process—”
“And there’s no allowance for ex parte communication between the board member and the applicant.”
“We’ve done this for years,” Williams said.
Vallette said, “And it’s not proper.”
“The phrase ‘ex parte’ is crucial in the complex realm of court procedures. A term with its roots in Latin — ‘from one side’ — it describes a situation in which one party takes legal action without the other party being present. While this idea is vital in cases requiring swift judicial involvement, it does bring up questions regarding the openness and equity of the justice system,” according to the Nasake Law Firm.
According to Maine State Statute, “In any adjudicatory proceeding, no agency members authorized to take final action or presiding officers designated by the agency to make findings of fact and conclusions of law may communicate directly or indirectly in connection with any issue of fact, law or procedure, with any party or other persons legally interested in the outcome of the proceeding, except upon notice and opportunity for all parties to participate.”
However, it does not, according to the state, prohibit a agency member from “communicating in any respect with other members of the agency or other presiding officers; or having the aid or advice of those members of the agency member’s or other presiding officer’s own agency staff, counsel or consultants retained by the agency who have not participated and will not participate in the adjudicatory proceeding in an advocate capacity.”
Williams then said he talked to Larson.
“Did you talk to Lee about it? Vallette asked.
“No.”
“Never?”
“No. Well, I might have. I can’t tell you,” Williams said.
“So you did,” Vallette said.
“I’m not saying I did.”
“So there should be a recusal now, because you’re talking about these applications here, and you share the same attorney as well,” Vallette suggested.
Williams then said he was having trouble hearing Vallette and that he wasn’t looking for an argument.
“John was showing me the application, Lee Wooster’s application, and he was showing me a DEP memo, which he had received, and the memo stated, as far as DEP was concerned, the only thing that was required for—I’m not going to say remediation—was required was town water and town sewer,” Williams continued.
“Can you show a copy of that memo?” Vallette asked.
Williams responded, “I don’t know where it is.”
“Yeah, it doesn’t exist. That’s why you don’t know where it is,” Vallette said.
“It does exist,” Williams said.
“I showed you the communication. The board has seen the communication. It does not exist,” Vallette said.
“It does exist,” Williams insisted of the memo that he said the DEP said its only concern about the site was if it was on town water and sewer.
Vallette asked that, for the record, the town include the memo that Williams was referencing or say that it couldn’t find it at the next planning board meeting.
LINKS TO LEARN MORE
From Protection to Permissions: Southwest Harbor Officials Rethink Soil Testing Law.
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Mar 19
Planning Board minutes archive with recordings is here.
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