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Blanchard v. Town of Bar Harbor

Supreme Court of Maine

December 19, 2019

JAMES BLANCHARD et al.
v.
TOWN OF BAR HARBOR

          Argued: October 7, 2019

          William H. Dale, Esq. (orally), Mark A. Bower, Esq., and Benjamin T. McCall, Esq., Jensen Baird Gardner & Henry, Portland, for appellants James Blanchard et al.

          Edmond J. Bearor, Esq., Joshua A. Randlett, Esq., and Jonathan P. Hunter, Esq. (orally), Rudman Winchell, Bangor, for appellee Town of Bar Harbor

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          MEAD, J.

         [¶1] James Blanchard and a number of other individuals[1] whose properties have views overlooking the waters adjacent to the Town of Bar Harbor's Ferry Terminal Property appeal from a judgment of the Business and Consumer Docket (Murphy, J.) in favor of the Town on appellants' complaint seeking a declaratory judgment that the Town's Zoning Ordinance Amendment is invalid. Because we conclude that the property owners have failed to demonstrate a particularized injury and have commenced this action prematurely, we vacate the judgment on standing and ripeness grounds and remand for dismissal without prejudice. As such, we do not reach the merits of the property owners' claims that the Amendment is inconsistent with state law and that the court erred in deferring to the Department of Environmental Protection's order approving the Amendment.

         I. BACKGROUND

         [¶2] We draw the following facts from the parties' stipulated record. See BCN Telecom, Inc. v. State Tax Assessor, 2016 ME 165, ¶ 3, 151 A.3d 497.

         [¶3] Pursuant to the Bar Harbor Town Charter, the Town Council placed a warrant article on a referendum ballot containing the Zoning Amendment (Article 12) and a competing measure (Article 13) to be addressed at a Town meeting on June 13, 2017. At that Town meeting, residents voted to pass the Zoning Amendment (Article 12) and rejected the competing measure (Article 13).

         [¶4] The Amendment changed the Town's Land Use Ordinance in three ways: (1) it created a new "Shoreland Maritime Activities District" that would apply to the Ferry Terminal Property (Tax Map 231, Lot 004), (2) it added definitions for "passenger terminal" and "parking deck," and (3) it amended the zoning map by applying the Shoreland Maritime Activities District to the Ferry Terminal Property. See Bar Harbor, Me., Land Use Ordinance §§ 129-49.3, 125-109 (June 13, 2017). The parties agree that the intent underlying the Amendment was to allow substantially larger cruise ships to use the Ferry Terminal Property.

         [¶5] On July 18, 2017, the Department of Environmental Protection (DEP) issued an order approving the Amendment.[2] The property owners, who own real property in Bar Harbor, Sorrento, and Hancock, subsequently filed a complaint seeking a declaratory judgment that the Amendment was invalid. See 14 M.R.S. § 5954 (2018). The parties submitted the matter to the Business and Consumer Docket on agreed statements of fact. The BCD entered judgment for the Town, concluding that (1) the property owners' declaratory judgment request presented "a genuine controversy ripe for judicial review," (2) only the Bar Harbor property owners had standing to challenge the Amendment, (3) the Amendment was in harmony with the Town's comprehensive plan, (4) the DEP order was entitled to "considerable deference," and (5) the Amendment was not inconsistent with DEP regulations.

         [¶6] The property owners raise two arguments on appeal, see 14 M.R.S. § 5959 (2018): (1) the court erred in deferring to the DEP's order, and (2) the Amendment is inconsistent with state statutes and regulations. We conclude that the property owners lack standing to challenge the Town's amendment of its Land Use Ordinance and that their claim is not ripe. Thus, we do not reach their substantive arguments. We vacate the court's judgment and remand for entry of an order of dismissal without prejudice.

         II. DISCUSSION

         [¶7] Our analysis begins by considering the threshold issues of standing and ripeness. Each presents ...


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