ROCKPORT — A Knox County Superior Court Justice is taking up the constitutional question concerning two land use ordinance amendments approved in August 2020 by town voters, and whether they should have been considered by the town when processing a building permit for a new hotel in Rockport Village.
The appeal for court relief in the matter is the fourth count bundled into a four-count lawsuit filed by the Friends of Rockport, John Priestley, Mark Schwarzmann and Clare Tully against the Town of Rockport and 20 Central Street LLC, developers of the hotel.
Three other counts in the court complaint, and which challenged the town’s issuance of a building permit to 20 Central LLC for a 26-room hotel, had also been recently argued before the Rockport Zoning Board of Appeals.
“We are pleased that the judge is providing an expedited path to finally resolving these issues, and that he has acknowledged the developer’s risks in proceeding with construction before the decision is reached,” said PretiFlaherty Attorney Kristin Collins, who represents the plaintiffs. “This is an interesting situation in that the Town is fighting to invalidate an ordinance that was passed by its own voters. We hope that the Court will ultimately order the Town to apply both the 2020 amendment limiting the number of hotel rooms and the longstanding provisions that required the building design to preserve scenic views.”
The Town of Rockport declined to comment on the July 14 order.
On July 8, the ZBA had approved a set of findings that upheld that town’s issuance of a building permit. But the ZBA voted at that meeting that: “Maine law is clear that local boards of appeal are creatures of statute and may only hear appeals of subjects that are specifically authorized by statute, charter, or local ordinance. Maine law is also clear that boards of appeal may not consider constitutional issues or determine the legal validity of ordinances.”
The fourth count said the plaintiffs’ constitutional right to petition was harmed, “by the town’s failure to place the matters to timely vote and then to treat those petitioned amendments as legally effective once enacted,” wrote Knox County Superior Court Justice Bruce Mallonee a July 14 order that is allowing that particular claim to move forward in court.
Agreeing with the ZBA, Justice Mallonee wrote, “These claims could not have been raised in the appeal to the Zoning Board of Appeals because that board does not have authority to resolve constitutional claims.”
With that order, he set Aug. 12 as a deadline for the plaintiffs to produce records relating to their challenge of the Rockport Planning Board approval of a new hotel in the Village.
He also ordered that the defendants have until Aug. 26 to submit their briefs.
September 7 is the deadline for plaintiffs’ reply briefs, and then the court is to schedule a date for oral argument.
Justice Mallonee wrote in his July 14 order that he declined to issue an preliminary injunction or stay on the current hotel construction.
“A further observation is in order,” he wrote. “The court’s earlier orders have addressed the parties’ competing interests with respect to 20 Central’s ongoing construction of its hotel. Although the court has declined to enter either a preliminary injunction or stay, and declines to do so today, it has signaled to 20 Central with what it hopes is unmistakable clarity that in the event either set of plaintiffs prevails, and the court is required to assess remedies, it will not be constrained by the risk 20 Central assumed by contenting construction as these cases were pending.”
The constitutional issue
At issue is a state statue, which imposed a hard deadline of 45 days for a vote to take place in response to citizen petitions whose language ultimately resulted in two warrant articles that appeared before Rockport voters at the 2020 annual town meeting. But the sequence of decisions, a Governor’s public health emergency order due to the pandemic, and the delay of town meeting, all created a legal tangle.
In February 2020, the Rockport Planning Board pre-approved a site plan application for the 26-room 20 Central Street hotel.
In early March 2020, the plaintiffs, who objected to the hotel as planned, circulated two citizen petitions proposing the town adopt new land use ordinance amendments that called for traffic studies, as well as limits on hotel rooms in the downtown zoning district.
The petitions included stipulations that made the amendments apply to off-site parking facilities that had not received final approval as of 45 days prior to the amendment’s enactment (which, in a normal, non pandemic year, would have been in early June).
The plaintiffs gathered enough signatures to place the land use ordinance amendments before the Select Board. They asked that the petition language be included on the June 9 Town Meeting municipal warrant. The Rockport Select Board subsequently placed them on the warrant.
On March 18, Gov. Janet Mills signed into law a public health emergency, which allowed municipalities to postpone their elections and referendums, including annual town meetings.
On March 23, the Rockport Select Board voted to postpone its 2020 town meeting and ballot votes.
On May 21, 2020, the Rockport Planning Board gave final approval of the hotel’s site plan.
That voted started the 45-day limit on a town vote, as outlined in state statute.
Five days later, the Select Board voted to reschedule the town meeting to August 18.
On July 5, the 45-day period following the Planning Board’s May 21 decision ended.
“Assuming 30-A M.R.S. 3007(6) applied, this was the last day the town could ‘nullify or amend’ the May 21, 2020 decision by voting in favor of the ordinance amendments described in Petitions A and B,” wrote Justice Mallonee, in an earlier order issued in April 2021.
On Aug. 18, the petition amendments were both approved at the polls by Rockport voters. The amendments, positioned as Article 3 and Article 4 on the warrant, called for, respectively, new parking rules that call for traffic studies and limits on hotel rooms in the downtown zoning district.
Article 3 passed at a vote of 332 to 250.
Article 4 passed at 328 to 271.
On Aug. 19, 2020, “Counsel for 20 Central submitted a letter to the town arguing that the two potions could not be applied to the proposed hotel because, pursuant to [state statute 3007(6)] they had been passed more than 45 after the board’s May 21 approval decision,” wrote Mallonee, in April, when he denied a temporary restraining order of the 20 Central LLC construction of a new hotel in Rockport Village.
On March 10, 2021, Rockport issued its building permit.