Blanchard v. Town of Bar Harbor

• Court: Superior Court of Maine
• Decided: December 18, 2018
• Docket: CUMbcd-cv-17-52
• Status: Unpublished

Opinion

STATE OF MAINE BUSINESS & COUNSUMER DOCKET / CUMBERLAND, ss. DOCKET NO. BCD-CV-17-52 .

JAMES BLANCHARD~ et al., ) ) Plaintiffs, ) ) v. ) JUDGMENT ON STIPULATED ) RECORD TOWN OF BAR HARBOR, ) ) Defendant. )

This case was presented to the Court for decision without trial on a stipulated record and

the written briefs of the parties. The Com1 also heard oral argument on the matter on November 7,

2018. William H. Dale, Esq. appeared for Plaintiffs and Edmond J. Bearor, Esq. appeared for

Defendant.

FACTS

This case involves a parcel of land located at 121 Eden Street in the Town of Bar Harbor,

which is designated by Bar Harbor as Tax Map 231, Lot 004 (the "Ferry Terminal Property") and

was re-zoned pursuant to a vote of the annual Town meeting on June 13, 2017 (the "Zoning

' Amendment"). (Stip. ,r 1.) In this action, Plaintiffs' seek a declaratory judgment declaring that the

Zoning Amendment is invalid on the grounds that it is not pursuant to, or consistent with, the

Town's comprehensive plan and, furthermore, is not in accord with Maine statutes and regulations

governing shoreland zoning. The Defendant, the Town of Bar Harbor (the "Town") is a municipal

corporation existing under the laws of the State of Maine and located in the County of Hancock, ' State of Maine. (Stip. ~ 5.)

1 Plaintiffs are twenty-one individuals and one trust that own land in, or with a view of, Bar Harbor. (Stip. 1~ 2-4.) As discussed in more detail below, the Town argues that only those plaintiffs who own land in Bar Harbor have standing to challenge the Zoning Amendment. (De-f's Br. 5-7.)

1 Over a year before the vote on the Zoning Amendment, on March 15, 2016, John Henshaw

of the Maine Port Authority wrote to Robert Osborne, the Town's Platming Director, regarding

the Maine Department of Transportation's planned lease with purchase option2 for the Ferry

Terminal Property. (Stip. 1 17.) Thereafter, the Town Planning Board took up the issue of a

proposed amendment to the Town's local zoning ordinance and shoreland zoning ordinance

(collectively, the Land Use Ordinance or the "LUO") at its meeting on April 6, 2016. (Stip. 1 18.)

Between April 6, 2016 and March 7, 2017, the Planning Board, Town Council, and Mr. Osborne

met and corresponded multiple times to discuss and revise the language of what would become

the Zoning Amendment. (Stip. ,r,r 18-29.) These meetings and correspondences included a site visit

to the Ferry Terminal Property by the Planning Board, joint meetings of the Planning Board and

Town Council, and public hearings. (Stip. ,r,r 19, 21, 24-25, 28.) Mr. Henshaw also continued to

correspond with Mr. Osborne regarding the Zoning Amendment. (Stip. ~1 17, 28.)

In Bar Harbor, pursuant to the Town's charter, the exclusive legislative authority to adopt

or amend the LUO is vested in the Town meeting. (Stip. ,r 7.) The Town's charter requires electors

to act on referendum questions, including amendments to the LUO, by voting on "articles," i.e.

individual questions, on the "wmTant," i.e. ballot, at a Town meeting. (Stip. ,r 8.) On March 7,

2017, the Town Council voted to place various articles on the warrant, including Article 12, which

asked electors at the annual Town meeting whether they were in favor of the Zoning Amendment.

(Stip. 1~ 10, 29, 32.) At the Town meeting, electors voted to pass Article 12, and the LUO was

amended consistent with the Zoning Amendment. (Stip. ~,r 1, 11-12, 32.) A competing measure-­

Article 13-was defeated. (Stip. ~ 11.) On July 18, 2018, the Maine Department of Environmental

2 The Maine Department ofTransportation thereafter purchased the Feny Tenninal Property. (Stip. 134.)

2 Protection ("DEP") issued an order approving3 the Zoning Amendment (the "DEP Order") but

referenced deficiencies in other provisions of the LUO that had been identified in a prior DEP

order issued in 2012. (Stip., 33.) Those unrelated deficiencies are not relevant here.

The intent underlying the Zoning Amendment was to allow cruise ships to use the Ferry ,I

Terminal Prope11y. (Stip. , 13.) The current practice for cruise ships visiting Bar Harbor is to

anchor the ship in the harbor and bring passengers ashore using tenders, or smaller boats. (Stip. ,

14.) To further the Town's goal of allowing cruise ships to use the Feny Terminal Property, the

Zoning Amendment effected three changes to the LUO: (1) the creation of a new "Shoreland

Maritime Activities District," which would apply to the Ferry Terminal Property; (2) the addition

of definitions for "passenger terminal" and "parking deck" in the LUO at section 125-_109

(Definitions); and (3) a map amendment assigning the Shoreland Maritime Activities district to

the Ferry Terminal Property. (Stip. , 12.)

DISCUSSION I. Ripeness and Standing

Before reaching the merits of this case, the Court must consider two threshold issues raised

by the Town: (1) whether there is a genuine controversy ripe for judicial decision and (2) whether

those plaintiffs whose properties are outside the Town lack standing to challenge the Zoning

Amendment.

1. Ripeness

Plaintiffs' complaint brings one count against the Town, for a declaratory judgment

pursuant to Maine's Declaratory Judgments Act, 14 M.R.S. §§ 5951-5963. Maine's declaratory

3 Municipalities are required to adopt zoning ordinances meeting the minimum guidelines found at 06-096 C.M.R. ch. 1000 with respect to all shoreland areas, an express limitation on the Legislature's general grant of municipal home rule authority. 30-A M.R.S. § 4352; 38 M.R.S. § 438-A. The Feriy Terminal Property is within a shoreland area. 38 M.R.S. § 435. As such, amendments to the Town's shoreland zoning ordinance (like the Zoning Amendment) are subject to State oversight and require DEP approval. 38 M.R.S. § 438-A(2)-(3).

3 judgment act provides that "any person . . . whose rights . . . are affected by a . . . municipal

ordinance ... may have determined any question of ... validity ... arising under the ... ordinance

...." 14 M.R.S. § 5954. The Oeclaratory Judgments Act "may be invoked only where there is a

genuine controversy." Patrons Oxford Mut. Ins. Co. v. Garcia, 1998 ME 38, 14, 707 A.2d 384

(citing Wagner v. Secretary of State, 663 A.2d 564, 567 (Me. 1995)). "A genuine controversy

exists if a case is ripe for judicial consideration and action." Id. (citing id.). Ripeness is a question

of law. Johnson v. Crane, 2017 ME 113, ~ 9, 163 A.3d 832. The Court considers two factors in

determining whether a case is ripe for review: (1) the fitness of the issue for judicial decision and

(2) the hardship to the parties of withholding court consideration. Id Speculative hardships cannot

satisfy this re~uirement. Clark v. Hancock Cty. Comm'rs, 2014 ME 33, ~ 19, 87 A.3d 712 (citing

Johnson v. City of Augusta, 2006 ME 92, P 8, 902 A.2d 855). However, "[t]he declaratory

judgment law does permit anticipatory challenges to a regulation or ordinance to resolve a dispute

regarding a planned action, before the matter actually proceeds and the challenged ordinance is

applied to the detriment of the plaintiffs." Sold, Inc. v. Town ofGorham, 2005 ME 24, ~ 14, 868

A.2d 172.

The Court concludes that in this case there is a genuine controversy ripe for judicial review.

Plaintiffs seek a declaration that a municipal ordinance-the Zoning Amendment-is invalid. The

issue is thus per se "fit" for judicial decision under the statute. See 14 M.R.S. § 5954. Furthermore,

this is not a situation where the Town has since further amended its LUO with regards to the Ferry

Terminal Property and Plaintiffs seek only a declaration that future actions by the Town might be

inconsistent with the Town's comprehensive plan or State statutes and regulations. CJ Clark, 2014

ME 33, ,r 20, 87 A.3d 712 (identifying "hardship" as "purely speculative" where the municipal

body had already rescinded the challenged votes). On the other hand, a judicial declaration of the

4 validity of the Zoning Amendment "can only aid the [Town] in making use of its lawful regulatory

powers." See Me. Pub. Serv. Co. v. Pub. Utils. Com., 524 A.2d 1222, 1226 (Me. 1987). In sum,

the Court is satisfied that the question of the validity of the Zoning Amendment is ripe for judicial

consideration. See Johnson v. Crane, 2017 ME 113, ,r 9, 163 A.3d 832.

2. Standing

The Town next argues that those Plaintiffs whose properties are outside the Town lack

standing to challenge the Zoning Amendment. Al1 but four of the Plaintiffs own property outside

of the Town in either Hancock, Maine or Sonento, Maine, both in Hancock County. (Stip. ,r,r 2­

4.) The Town bases its argument on Buck v. Yarmouth, 402 A.2d 860, 861 (Me. 1979), where the

Law Court held that a private citizen must generally be able to establish some sort of

"particularized injury" resulting from the municipality's action or inaction in order to have

standing to challenge its validity-in other words, in order for a plaintiff to have a particularized

injury, the municipality's action or inaction must affect them differently than it affects the larger

community as whole. Id at 861-62. Absent a particularized injury, a plaintiff only has standing to

challenge a municipality's action if they seek preventative-rather than remedial-relief from the

municipality. Id Plaintiffs respond that (1) they have proven a particularized injury on the

stipulated record and (2) that the relief they seek is preventative, and not remedial, in any event.

Plaintiffs identify the berthing of cruise ships at the Ferry Terminal Property as their particularized

injury and a prohibition on the berthing of cruise ships at the Ferry Terminal Property as the

preventative relief that they seek; or as the Plaintiffs put it at oral argument, that they "don't want

this ordinance to be allowed to go forward."

The problem with both of Plaintiffs' arguments is that they conflate the actual issue before

the Court with what Plaintiffs characterize as the "practical matter" before the Court; i.e.,

5 Plaintiffs' "challenge[] [to] the Town Council's efforts to allow a very large, land-based pier to

accommodate very large cruise ships ...." (Pl's Br. 2.) The Court acknowledges that the impetus

for Plaintiffs' lawsuit is their aversion to a retrofitting of the Ferry Terminal Property to allow it

to accommodate large cruise ships, but they have grounded this i'anticipatory challenge" to that

result in the purported invalidity of the Zoning Amendment. See Sold, Inc., 2005 ME 24, 114, 868

A.2d 172. In other words, in this lawsuit, Plaintiffs ask this Court to declare the Zoning

Amendment invalid: Plaintiffs do not ask the Court to enjoin any imminent future action of the

Town. See Buck, 402 A.2d at 862. In this context, Plaintiffs' only injury, if any, can be the injury

of living in a town that has enacted an unlawful ordinance. The Town implicitly concedes that this

a sufficient injury to confer standing on the four Plaintiffs who own property in Bar Harbor under

Buck, although it is not clear on the Stipulated Record how they have suffered "special injury

different from that incurred by any other voter," or even whether they are ·eligible to vote at the

Town meeting. Id at 861. (Def's Br. 5.)

The Court thus concludes that only those four Plaintiffs who own property in the Town of

Bar Harbor and are listed in Paragraph Two of the Stipulated Record have standing to challenge

the Zoning Amendment. The other Plaintiffs, the seventeen individuals listed in Paragraph Three

and Paragraph Four of the Stipulated Record, lack standing and are dismissed froin this lawsuit.

II. Merits

As noted above, the Zoning Amendment created a new "Shoreland Maritime Activities

District" and assigned the Ferry Terminal Property in the new district. (Stip. ~ 12.) In particular,

the Zoning Amendment added section 125-49.3 to the LUO. (Jt. Ex. 2.) LUO§ 125-49.3 explains

the purpose for the creation of the Shoreland Maritime Activities District, identifies the uses and

6 activities allowed in the District, and describes the required permitting process for allowed uses.

(Id.)

Plaintiffs first claim that the Zoning Amendment is inconsistent with the Town's

comprehensive plan. See 30-A M.R.S. § 4352(2) ("A zoning ordinance must be pursuant to and

consistent with a comprehensive plan adopted by the municipal legislative body," subject to an

exception not relevant here). However, at the oral argument, Plaintiffs all but abandoned this

argument, acknowledging that the standard of review for such a challenge presents a high hurdle

for Plaintiffs to overcome. See Friends ofthe lvlotherhouse v. City of Portland, 2016 ME 178, ir 12, 152 A.3d 159 (stating that plaintiffs have the "burden to prove that the [municipality's] action

rezoning ... property [is] not 'in basic harmony with the comprehensive plan.'") (quoting Remmel

v. City of Portland, 2014 ME 114, ,r 13, 102 A.3d i 168); see also Remmel, 2014 ME 114, ,r 12,

102 A.3d 1168 ("'zoning is a legislative act' and [courts] must give deference to the legislative '­

body'') (quoting Golder v. City of Saco, 2012 ME 76, ,r 9, 45 A.3d 697). Given Plaintiffs'

acknowledgement at the ora] argument, the Court addresses the issue only briefly. Cf State v.

Oken, 569 A.2d 1218, 1218 (Me. 1990) (courts do not consider issues argued in the briefs but

abandoned at oral argument). It is sufficient to state that the Court has reviewed the Town's

comprehensive plan, 4 including those provisions of the Town's comprehensive plan identified by

Plaintiffs and the countervailing provisions identified by the Town, and is satisfied that there is

nothing in the Zoning Amendment itself that is not in "basic harmony with the comprehensive

plan" as that standard has been defined by the Law Court. (Jt. Ex. 6.) See, e.g., Friends of the

Motherhouse, 2016 ME 178, ,r 12, 152 A.3d 159; Remmel, 2014 ME 114, ,r 26, 102 A.3d 1168;

Golder, 2012 ME 76, ,r 15, 45 A.3d 697.

4 Jt. Ex. 6.

7 Plaintiffs next argue that LUO § 125-49.3 is inconsistent with Maine's shoreland zoning

statute, 38 M.R.S §§ 435-449, and associated DEP regulations found at 06-096 C.M.R. ch. 1000.

Plaintiffs identify purpmted inconsistencies between LUO § 125-49.3 and two provisions of 06­

096 C.M.R. ch. 1000: (1) 06-096 C.M.R. ch. 1000, § l 3(F) and the "note" associated with that

subsection and (2) the land uses listed in Table 1 of 06-096 C.M.R. ch. 1000, § 14 ("Land uses in

the shoreland zone"). s

The Court is not the first body to consider these issues. As noted above, the DEP issued an

order approving the Zoning Amendment-in other words, DEP was not persuaded that LUO §

125-49.3 violated or was otherwise inconsistent with any State shoreland zoning statute or DEP

regulation, including 06-096 C.M.R. ch. 1000. See 38 M.R.S. § 438-A(2),(3). (Stip. ,r 3J.) At the

oral argument, Plaintiffs confirmed that they did not challenge or appeal the DEP Order pursuant

to M.R. Civ. P. SOC. Nonetheless, in order to prevail in this action, as a practical matter, Plaintiffs

must convince the Court that DEP reached the wrong result when it approved the Zoning

Amendment. In their written memoranda, the parties do not meaningfully address what level of

deference the Comt should afford the DEP Order, and it was discussed only briefly at the oral

argument. Plaintiffs argue that "no judge or likely any attorney has said the Article 12 provisions

are lawful-only a DEP staff person who apparently was not that familiar with the law[,]" implying

that the order warrants little deference, but citing no authority for that position. The Town's brief

merely mentions in passing that the DEP has approved the Zoning Amendment, a point it reiterated

5 Plaintiffs also raise an issue unrelated to State shoreland zoning law, viz. that the Zoning Amendment uses "undefined

terms." (Pl's Br. 10.) In their reply brief, for the first time Plaintiffs suggest that the Zoning Amendment should be invalidated because these terms are too vague to be enforceable. (Pl' s Reply l On. 11.) The issue is outside the scope of the issues as identified by the Plaintiffs themselves in this lawsuit, as Plaintiffs do not identify how the use of the purportedly undefined terms conflicts with any provision of the State shoreland zoning statute or DEP guidelines. (Pl's Br. 2,7.)

8 at the oral argument, but takes no position on what level of deference the Court should afford the

DEP Order.

Assuming Plaintiffs had standing to appeal from the DEP Order to a Maine superior court

under M.R. Civ. P. 80C and 5 M.R.S.A. §§ 11007(2)-(4), the agency's decision therein would be

reviewed for "for errors of law, abuse of discretion, or findings not supported by substantial

evidence in the record" and would enjoy "[c]onsiderable deference" with respect to its

"interpretation of its own rules [and] regulations[;]" in other words, the court would "not second­

guess the agency on matters falling within its realm of expe1iise." Mulready v. Bd ofReal Estate

Appraisers, 2009 ME 135, ,r 13,984 A.2d 1285 (citations and quotations omitted); see FPL Energy

Me. Hydro LLC v. Dep 1t ofEnvtl. Prat., 2007 ME 97, ,r,r 11-14, 926 A.2d 1197. In the absence of

any countervailing authority provided by the Plaintiffs the Comt can discern no reason to apply

stricter scrutiny in the context of this case. The Court thus concludes that the DEP Order is entitled

to considerable deference. See id.

1. The Zoning Amendment is Not Inconsistent with 06-096 C.M .R. ch. 1000, § 13(F).

Section 125-49.3(A) of the LUO describes the Town's purpose for creating the Shoreland

Maritime Activities District and zoning the Ferry Terminal Property in that new district:

A. Purpose. The Shoreland Maritime Activities District seeks to supp01t maritime activities related to the reuse of [the Ferry Terminal Property], the ferry terminal for both cruise ship and feny activities. This district includes all land currently occupied by or suitable for active water-dependent uses, talcing into consideration: (1) Shelter from prevailing winds and waves; (2) Slope of the land within 250 feet, horizontal distance, of the shoreline; (3) Depth of water within 150 feet, horizontal distance, of the shoreline; (4) Available support facilities, including utilities and transp01iation facilities; and (5) Compatibility with adjacent upland uses.

Id. This is a clear attempt by the Town to create what the DEP regulations call a

Commercial Fisheries/Maritime Activities ("CFMA") District, in order to develop the Ferry

9 Terminal Property with the uses and structures allowable in a CFMA district under the DEP

regulations and discussed in more detail in the following section of this Order.

The CFMA District is defined by 06-096 C.M.R. ch. 1000, § 13(F) as including "areas

where the existing predominant pattern of development is consistent with the allowed uses for this

district as indicated in the Table of Land Uses, Section 14, and other areas which are suitable for

functionally water-dependent uses(.]" The regulation goes on to list several factors to be

considered in determining whether a district should be zoned as CFMA:

(1) Shelter from prevailing winds and waves; (2) Slope of the land within 250 feet, horizontal distance, of the shoreline; (3) Depth of water within 150 feet, horizontal distance, of the shoreline; (4) Available support facilities including utilities and transportation facilities; and (5) Compatibility with adjacent upland uses. Id. The note to 06-096 C.M.R. ch. 1000, § 13(F) further provides that:

A municipality may opt t~ identify one or more CFMA Districts, each of which may be as small as a single parcel, provided that the municipality includes in this district or combination of CFMA districts, all land currently occupied by or suitable for active water dependent uses, taking into consideration the above-listed factors.

Id. Plaintiffs claim that this Jattermost language from the note makes it clear that the

rezoning of a single parcel can survive judicial review only if the municipality includes all land

with such uses-otherwise, it is unlawful "spot zoning." See City ofOld Town v. Dimou!as, 2002

ME 133,120, 803 A.2d 1018 ("Spot zoning is not itself a pejorative term .... In order to constitute

illegal spot zoning, the ordinance (1) must pertain to a single parcel or a limited al'ea-ordinarily fo1·

the benefit of a particular property owner or specially interested party-and (2) must be inconsistent

with the city's comprehensive plan ... ,,,) (quotations omitted). Plaintiffs point out that nowhere

in the minutes of any meeting of Town appointed or elected boards is there any consideration of

including any other adjacent (or nearby) lots or parcels of land in the new zoning district, and all

consideration from the very beginning ofthe process has been limited solely to the Ferry Terminal

10 Property. The Town counters that in fact the Zoning Amendment recites that it includes all such

land and argue that Plaintiffs have not presented any facts to the Court from which it could

conclude that the Zoning Amendment does not include all _such land. See LUO § 125-49.3(A).

Furthermore, the Town points out that the preface to 06-096 C.M.R. ch. 1000 provides that the

notes are not "official parts" of the guidelines and "are provided for explanatory purposes only."

Id

Plaintiffs have failed to carry their burden to demonstrate an inconsistency between LUO

§ 125-49.3(A) and 06-096 C.M.R. ch. 1000, § 13(F). First, Plaintiffs have adduced no evidence

that the Town has not included in the new Shoreland Maritime Activities District all land currently

occupied by or suitable for active water dependent uses taking into consideration the factors listed

above. The joint exhibits identified by Plaintiff do not support the proposition that the Town did

not. In Joint Exhibit Twenty, Attorney Bearor expressed an opinion that if Article 12 and the

competing warrant article (Article 13) were both passed, then the creation of the Shoreland

Maritimes Activities District "may ve1r well be unlawful 'spot zoning."' (Jt. Ex. 20 at 3.)

However, Article 13 did not pass. (Stip. ,r 11.) In Joint Exhibit Seventeen, Mr. Henshaw likewise

suggests that an unidentified draft of Warrant Ai-ticle 12 "apparently ... create[s] a new 'spot

zone"' without even commenting on its legality. (Jt. Ex. 17 at 2.) TI?-e absence of discussion of the

geographic scope of the new proposed district in the public record is insufficient evidence,

particularly considering that the DEP ultimately approved the Zoning Amendment. (Stip. if 33.) In

sum, Plaintiffs have not demonstrated that the "explanatory" guidance provided in the note to 06­

096 C.M.R. ch. 1000, § 13(F) was not followed, even assuming its language is controlling on the

Town. See 06-096 C.M.R. ch. 1000 (preface). 6

6 Fu1thennore, Plaintiffs cite no evidence that would satisfy either prong of the test for illegal spot zoning as laid out in City ofOld Town v. Dimoulas, 2002 11E 133, ,r 20, 803 A.2d 1018.

11 2, The Zoning Amendment is Not Inconsistent with 06-096 C.M.R. ch. 1000. § 14.

Section 125-49.3(C) of the LUO identifies the allowed uses and structures in the newly­

created and zoned Shoreland Maritime Activities District, and describes the required pel'mitting

process for those uses:

C, Allowed uses. (1) Principal uses allowed by building permit or a change of use permit from the Code Enforcement Officer: a government facility and grounds, and temporary pier, dock, wharf, breakwater or other use projecting into the water. (2) Accessory uses that are usual and normal to a principal use are allowed if they are typically permitted by the Code Enforcement Officer or site plan review for the district. in which the use is proposed. Accessory uses are allowed by review of the same permitting authority that approved the principal structure and shall include bank; farmers market; hotel; multifamily dwelling I; multifamily dwelling II; parking deck; parking lot; professional office building; restaurant; retail; take-out restaurant and wireless telecommunications facility.

Id. 06-096 C.M.R. ch. 1000, § 14 consists of a table, "Table l," which identifies what uses

and structures are allowed and not allowed in a CFMA District, and the required permitting

process, if any, for the allowed uses and structures. Table 1 differentiates between "Principal

structures and uses" and "Structures accessory to allowed uses." 06-096 C.M.R. ch. 1000, § 14,

Table 1 at lines I 5-16. Principal structures and uses are, at a minimum, subject to Planning Board

approval and must be "[F]unctionally water dependent uses [or] uses accessory to such water

dependent uses ...." 06-096 C.M.R. ch. 1000, § 14, Table 1 at lines 15(A)-(F), n. 5. The CFMA

District does not allow one- and two-family residential or multi-unit residential structures or uses

as a "principal" structure or use. Id. at lines 15(A)-(B). "Structures accessory to allowed uses" are

always allowed in a CFMA District and do not require Planning Board approval or satisfaction of

the functionally water-dependent condition. Id at line 16. The determination of whether a structure

is "principal" or "accessory" is left in the first instance to the municipality, subject to approval by

the DEP. See first "note" to 06-096 C.M.R. ch. 1000, § 14; 38 M.R.S. § 438-A(2),(3).

12 Plaintiffs argue that some of the "accessory uses" 7 contemplated by LUO§ 125-49.3(c)(2)

are expressly disallowed by 06-096 C.M.R. ch. 1000, § 14, Table 1 at line 15, even with municipal

approval-in particular, residential uses and non-functionally water-dependent commercial uses

such as a bank, farmers market, office building, etc. See id. at lines 15(A)-(C). However, this

conflates the two categories of uses and strnctures contemplated by Table 1: "principal" and

"accessory." Id. at lines 15-16. "Multi-unit residential" uses are indeed listed as prohibited, and

commercial uses subject to Planning Board approval and the "functionally water-dependent"

condition-but only ifthey are "Principal structures and uses." See 06-096 C.M.R. ch. 1000, § 14,

Table 1 at lines 15(A)-(C) (emphasis added). "Structures accessory to allowed uses" 8 are allowed

even in the absence of municipal approval and are not subject to the functionally water-dependent

condition. See 06-096 C.M.R. ch. 1000, § 14, Table 1 at line 16. Here, the Town expressly provided

that the residential and commercial uses are "accessory uses" in the Zoning Amendment. LUO §

125-49.3(c)(2). DEP was satisfied that these structures and uses are allowable as accessory to the

principal structures and uses, and the Court declines to second-guess that determination, which is

well within DEP's expertise and discretion. See Mulready, 2009 ME 135, ~ 13, 984 A.2d 1285.

In sum, the Court concludes that the Zoning Amendment is not inconsistent with State

shoreland zoning law and declines to declare it invalid on that basis in this case.

7 In their reply brief and at the oral argument, Plaintiffs also rafaed the argument tbat one of the "principal uses" of the Ferry Terminal Property contemplated by section 125-49.3 (c)(I) of the Zoning Amendment-"goverrunent facili ty and grounds"-is disallowed by 06-096 C.M.R. ch. I000, § 14, Table 1, at line IS(E), because it is not "fimctionally water-dependent'' and the governmenl facility contemplated by the Zoning Amendment- a passenger ferryte1minal­ is inconsistent with the definition of"_government facility/use" found in section 125-109 of the LUO. (PJ's Reply 9­ 10.) However, this argument was not raised in their initial brief or anticipated by the Town in its opposing memorandum . See M.R. Civ. P. 7(e). In any event, the Comt is satisfied that the passenger fcr,y te1minal contemplated by the Zoning Amendment is indeed "functionally water-dependent" and consistent with the definition of"government facility/ use" found at LUO § t25- l 09. 8 "Allowed uses" being those principal strnctures and uses listed at lines 15(C)-(F), such as, in this case, functionally water-dependent "[g]overnment and institutional" shuct'l1res and uses. 06-096 C.M.R. ch. 1000, § 14, Table I at line lS(E).

13 CONCLUSION

Based on the foregoing It is hereby ordered: ' That judgment be entered fol' the Defendant Town of Bar Harbor on the Plaintiffs'

Second Amended Complaint,

The Cle1·k is requested to enter this Order on the docket for this case by incorporating it by

reference, M.R. Civ. P, 79(a).

Dated; \ "J- \ \ t }1 ~ 1~ ~ M. Michaela Mui·phy Justice, Business and Consumer Court

Entered on the Docket: ;4/; g:)J? Copies sent via Mail_Elect;ically_::"