JAMES BLANCHARD et al.
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.
J. Bearor, Esq., Joshua A. Randlett, Esq., and Jonathan P.
Hunter, Esq. (orally), Rudman Winchell, Bangor, for appellee
Town of Bar Harbor
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
James Blanchard and a number of other
individuals 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
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.
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).
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.
On July 18, 2017, the Department of Environmental Protection
(DEP) issued an order approving the Amendment. 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.
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.
Our analysis begins by considering the threshold issues of
standing and ripeness. Each presents ...