James Blanchard v. Town of Bar Harbor

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 168
Docket: BCD-19-12
Argued: October 7, 2019
Decided: December 19, 2019

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

JAMES BLANCHARD et al.

v.

TOWN OF BAR HARBOR

MEAD, J.

[¶1] James Blanchard and a number of other individuals1 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

1 William B. Ruger, Jr., Trustee of the 1999 William B. Ruger, Jr. Revocable Trust; Jonathan Eno
and Karen Gilfillan; Arnold and Margaret Amstutz; Mark Brady; Douglas Denny-Brown and Andrea
Denny-Brown; William and Weslie Janeway; Pamela McCullough; James Paterson and Patrice
McCullough; Lawrence and Susan Stahlberg; William Clendaniel; Harold Clark; Wendy Gamble;
Oakley and Frances Johnson; and Robert Worrell.
2

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,
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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

2 Amendments to municipal ordinances are not effective unless they are approved by the DEP.
See 38 M.R.S. § 438-A(3) (2018).
4

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 a potential bar to action by us.

A. Standing

[¶8] We review standing de novo as a question of law. JPMorgan Chase

Bank v. Harp, 2011 ME 5, ¶ 7, 10 A.3d 718. In the trial court, the Town argued

that the property owners in towns other than Bar Harbor lacked standing, and

the court agreed. The trial court stopped short of denying standing to the

Bar Harbor landowners, stating that the “Town implicitly concedes that this [is]

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

Bar Harbor under Buck [v. Town of Yarmouth, 402 A.2d 860 (Me. 1979)].”

Because we may raise the issue of standing sua sponte, Collins v. State,

2000 ME 85, ¶ 5, 750 A.2d 1257, we are not bound by the court’s conclusion
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that the Town “implicitly concede[d]” that the Bar Harbor property owners

have standing.

[¶9] Our cases have allowed anticipatory declaratory judgment actions

brought by “those persons engaged in a business directly affected by a statute.”

James v. Inhabitants of the Town of W. Bath, 437 A.2d 863, 865 (Me. 1981)

(emphasis added) (quotation marks omitted); see also Annable v. Bd. of Envtl.

Prot., 507 A.2d 592, 593, 596 (Me. 1986) (concluding that, although there was

not yet a “formal invocation of the licensing process . . . [nor] enforcement

action,” the plaintiff, who had sought and received approval from the Town for

multiple subdivision plans, was seeking a declaration of his own legal rights to

build, “which [were] directly affected by [the statute]”).

[¶10] Here, the property owners face no similar immediate threat to

their own property or business interests, nor are their alleged interests

captured under a different exception allowing anticipatory challenges. See, e.g.,

James, 437 A.2d at 865 (“[W]hen declaratory relief is available as a procedural

matter, a person whose activities are regulated with the imposition of criminal

penalties for failure to comply has standing to challenge such regulation and

need not undergo a criminal prosecution before being able to seek relief.”
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(emphasis added) (citing Planned Parenthood of Cent. Mo. v. Danforth,

428 U.S. 52, 62 (1976); Doe v. Bolton, 410 U.S. 179, 188 (1973))).

[¶11] The property owners cite a number of other cases for the

proposition that we allow challenges to a municipal ordinance even before the

claimants have suffered harm, but in those cases, plaintiffs alleged a tangible

and inevitable harm. In Ace Tire Co. v. Mun. Officers of City of Waterville, the

plaintiff had paid the challenged annual license fees to the City under protest

for years. 302 A.2d 90, 94 (Me. 1973). In Delogu v. City of Portland, the

property-owning plaintiffs had standing as taxpayers to challenge a municipal

property tax change. 2004 ME 18, ¶¶ 1, 8, 843 A.2d 33.

[¶12] The property owners also invoke our long-held

preventive-remedial doctrine of standing to argue that their action is

preventive in nature and thus they do not need to demonstrate a particularized

injury.3 The preventive-remedial doctrine allows a plaintiff to sue a

3At the outset, we note that standing and ripeness may be inextricably intertwined in this context.
As we observed in Lehigh v. Pittston Co., tension exists between the preventive-remedial doctrine of
standing, which encourages anticipatory challenges, and the doctrine of ripeness, “which mandates
restraint.” 456 A.2d 355, 358 n.11 (Me. 1983). We have questioned the continuing validity of the
preventive-remedial doctrine. See id. However, we have continued to apply the doctrine in recent
decisions, see Petrin v. Town of Scarborough, 2016 ME 136, ¶ 20, 147 A.3d 842, and we do not
reconsider the doctrine’s viability in this opinion; see McCorkle v. Town of Falmouth, 529 A.2d 337,
338 n.2 (Me. 1987) (“Because we have no difficulty concluding here that the relief sought was
preventive, we defer to another day acting upon the invitation . . . to reconsider the viability of the
[doctrine].”).
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municipality “to seek preventive relief against a threatened public wrong”

without demonstrating a particularized injury. Buck, 402 A.2d at 862. Where

the relief sought is “remedial” rather than “preventive,” however, the plaintiff

must demonstrate a particularized injury, in other words, an injury that does

not affect all members of the town equally. Id.; see Petrin v. Town of

Scarborough, 2016 ME 136, ¶¶ 20-21, 147 A.3d 842; Lehigh v. Pittston Co.,

456 A.2d 355, 358 (Me. 1983). Where a citizen lacks a particularized injury, we

have concluded that the Attorney General is a proper plaintiff to initiate an

action against a municipality to remedy a public wrong. Buck, 402 A.2d at 863

(“Thus, denial of standing to plaintiffs does not leave the voters of the Town of

Yarmouth without a remedy for a public wrong suffered by all voters equally, if

any exists.”).

[¶13] Because the property owners are seeking relief for a “wrong” that

has already occurred, the enactment of the Amendment, we conclude that this

case fits squarely within the line of cases in which plaintiffs have requested

remedial relief. See Lehigh, 456 A.2d at 359 n.12 (collecting case law for actions

deemed “remedial”); see also Petrin, 2016 ME 136, ¶ 20, 147 A.3d 842 (relief

from past tax assessments deemed “remedial”). Because they seek remedial

relief, the property owners must show that they suffer a particularized injury.
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[¶14] The property owners have failed to demonstrate a particularized

injury. Based upon the stipulated record, the only potential injury they allege

is that they “own and use residentially improved properties” in Bar Harbor,

Hancock, and Sorrento “with direct views over the inner Bar Harbor ocean

waters adjacent to the Ferry Terminal Property.” We have applied a “minimal”

threshold for standing where the challenging party is an abutter. See Roop v.

City of Belfast, 2007 ME 32, ¶ 8, 915 A.2d 966. However, nothing in the

stipulated record indicates that any of these property owners is an abutter.

Further, even if the property owners had established themselves as abutters,

they have not met the minimal standing threshold for abutters upon these facts.

The stipulated record contains no evidence demonstrating the tangible effect

on the property owners’ views. This is perhaps unsurprising because detailing

a negative effect on a view undoubtedly proves challenging when there is not

yet a concrete proposal threatening that view. See infra ¶¶ 19-22.

[¶15] In Harrington v. Inhabitants of Town of Kennebunk, we concluded

that “the potential for obstruction of view is an improper subject for judicial

notice” as a matter of “evidentiary propriety” because whether a structure will

obstruct a view “is clearly neither a matter of uncontested common knowledge

nor capable of certain verification.” 459 A.2d 557, 560 (Me. 1983). Thus, we
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indicated that evidence of a blocked view is necessary to demonstrate a

particularized injury that is based on views. See id. Accordingly, because the

property owners have failed to demonstrate particularized injuries in their

request for remedial relief, we vacate the judgment issued by the BCD and

remand for entry of dismissal without prejudice.

B. Ripeness

[¶16] Although the property owners lack standing to pursue this

challenge to the changes to the Land Use Ordinance upon this record, we

address also the issue of ripeness for the benefit of the parties and the court in

the event that a subsequent challenge to the ordinance is tendered.

[¶17] We review ripeness de novo as a question of law. Johnson v. City of

Augusta, 2006 ME 92, ¶ 7, 902 A.2d 855. The doctrine of ripeness prevents

“judicial entanglement in abstract disputes, avoid[s] premature adjudication,

and protect[s] agencies from judicial interference until a decision with concrete

effects has been made.” Id.

[¶18] The BCD judgment cited Sold, Inc. v. Town of Gorham, which states,

“The 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
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detriment of the plaintiffs.” 2005 ME 24, ¶ 14, 868 A.2d 172. The Declaratory

Judgments Act (DJA) provides,

Any person interested under a deed, will, written contract or other
writings constituting a contract, or whose rights, status or other
legal relations are affected by a statute, municipal ordinance,
contract or franchise may have determined any question of
construction or validity arising under the instrument, statute,
ordinance, contract or franchise and obtain a declaration of rights,
status or other legal relations thereunder.

14 M.R.S. § 5954.

[¶19] The DJA gives plaintiffs whose rights are affected the right to bring

declaratory action. Here, the property owners’ “rights, status or other legal

relations” are not yet affected. As we have noted above, although the Land Use

Ordinance has been modified, and the parties agree that the changes were

intended to improve the ferry terminal to accommodate cruise ships, there is

no currently planned action for construction or development in the

Ferry Terminal Property.

[¶20] In our case of first impression examining the DJA, we observed that

the purpose of the DJA is “not to enlarge the jurisdiction of the courts . . . but to

provide a more adequate and flexible remedy in cases where jurisdiction

already exists.” Me. Broad. Co. v. E. Tr. & Banking Co., 142 Me. 220, 223,

49 A.2d 224 (1946). Since then, we have maintained that the DJA “may be
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invoked only where there is a genuine controversy.” Patrons Oxford Mut. Ins.

Co. v. Garcia, 1998 ME 38, ¶ 4, 707 A.2d 384. “A genuine controversy exists if a

case is ripe for judicial consideration and action.” Id. Ripeness is a two-prong

analysis: (1) the issues must be fit for judicial review, and (2) hardship to the

parties will result if the court withholds review. Id. We conclude that the

property owners’ claim is not ripe.

[¶21] The property owners fail each ripeness prong. First, in order to be

fit for review, the controversy must pose a “concrete, certain, or immediate

legal problem.” Johnson v. Crane, 2017 ME 113, ¶ 10, 163 A.3d 832 (quotation

marks omitted). Here, all that has taken place is the passage of the Amendment.

The record is devoid of any suggestion that the Town has addressed or

approved any application for a permit for construction or development at the

Ferry Terminal Property. Any challenge that the property owners make at this

point is necessarily speculative as to the extent of development, improvement,

or construction that might occur, and thus the sort of injury they might suffer.

The mere fact that the Amendment allows accessory uses—subject to review

by the Town permitting authority—in the new Shoreland Maritime Activities

District, including a bank, farmers’ market, hotel, multifamily dwelling, or

restaurant, among other possibilities, does not ripen appellants’ challenge
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against any conjectural future development. See Bar Harbor, Me.,

Land Use Ordinance § 125-49.3(C)(2).

[¶22] Second, like the fitness prong, the hardship prong “requires

adverse effects on the plaintiff, . . . and speculative hardships do not suffice to

meet [the] requirement.” Johnson v. City of Augusta, 2006 ME 92, ¶ 8,

902 A.2d 855 (citations omitted); see Clark v. Hancock Cty. Comm’rs,

2014 ME 33, ¶ 20, 87 A.3d 712. Because no building or development permits

have been sought, the property owners’ injury is purely speculative at this

point. In simple terms, the property owners’ situation before and after our

review would remain the same, thus rendering this challenge to the ordinance

not ripe for judicial review.4

The entry is:

Judgment vacated. Remanded for the entry of
judgment of dismissal without prejudice.

4 During oral argument, the Town agreed that the property owners, if they are able to demonstrate

appropriate standing, would have the ability to challenge the enactment of the Land Use Ordinance
in later proceedings relating to applications for permits for construction or development on the
Ferry Terminal Property.
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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

Business and Consumer Docket docket number CV-2017-52
FOR CLERK REFERENCE ONLY