Erica Brooks v. Town of Bar Harbor

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2024 ME 21
Docket: Han-23-159
Argued: December 6, 2023
Decided: March 26, 2024

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.*

ERICA BROOKS et al.

v.

TOWN OF BAR HARBOR

CONNORS, J.

[¶1] The question presented in this declaratory judgment action is

whether the Town of Bar Harbor’s adoption of an amendment to its Land Use

Ordinance regarding vacation rentals was void because it was passed with less

than a supermajority. The Superior Court (Hancock County, R. Murray, J.)

concluded a supermajority was not needed; residents Erica Brooks and Victoria

Smith brought this action seeking a contrary declaration. Brooks and Smith

appeal from the Superior Court’s judgment granting the Town’s motion for

summary judgment and denying their motion for summary judgment. We

affirm, albeit on different grounds than those of the Superior Court.

*
Although Justice Jabar participated in this appeal, he retired before this opinion was certified.
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I. BACKGROUND

[¶2] “The following facts are drawn from the summary judgment record

and are not disputed by the parties.” Dussault v. RRE Coach Lantern Holdings,

LLC, 2014 ME 8, ¶ 2, 86 A.3d 52. Given the basis of our decision, we may be

brief as to the material facts.

[¶3] Brooks and Smith own real property within the Town; Brooks is also

a real estate broker who sells real estate in the Town. Brooks was a member of

the Planning Board at all times relevant to this case until her term expired in

July 2021. Smith is a current holder of a short-term rental license on property

she owns.

[¶4] On November 2, 2021, the Town enacted an amendment to the

provisions in its Land Use Ordinance (LUO) relating to short-term rentals by a

vote of 1,260 out of 2,100, or 60%. Brooks and Smith argue that because the

Planning Board’s vote—held before the November 2021 election—on whether

to recommend the proposed amendment resulted in a 2-2 tie, under the

language of the LUO then in place, the amendment needed to be enacted by a

two-thirds Town vote to become effective.

[¶5] Before the Superior Court, the parties concentrated on the issue of

whether the language of the LUO required passage by a two-thirds
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supermajority. The Superior Court agreed with the Town that the language did

not. On appeal before us, the Maine Municipal Association (MMA) moved and

was granted permission to file an amicus brief. In that brief, the MMA argued

that it was immaterial whether the LUO language called for a supermajority

vote because under 21-A M.R.S. § 723(4) (2023) and 30-A M.R.S. § 2501 (2023),

unless the Town’s charter provides otherwise, which it does not, only a simple

majority vote was required for the amendment to become effective.

[¶6] Although the parties continued to concentrate their argument on

appeal on the language in the LUO and the effect of a tie Planning Board vote,

the Town also endorsed the MMA’s argument. In response to the MMA’s

argument, Brooks and Smith contended that we should not address the

argument because it came too late, without affording them an opportunity to

develop the factual record relating to that argument.

II. DISCUSSION

A. We may affirm the Superior Court’s judgment on alternative
grounds.

[¶7] As a general rule, “[w]e may affirm a summary judgment on

alternative grounds from the trial court decision when we determine, as a

matter of law, that there is another valid basis for the judgment.” Yankee Pride

Transp. & Logistics, Inc. v. UIG, Inc., 2021 ME 65, ¶ 11, 264 A.3d 1248; see also
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Est. of Smith v. Cumberland Cnty., 2013 ME 13, ¶ 22, 60 A.3d 759 (“Although we

reach our conclusion for reasons different from those indicated by the Superior

Court . . . entry of summary judgment may be affirmed when we determine, as

a matter of law, that there is another valid basis for the judgment.”); Rainey v.

Langen, 2010 ME 56, ¶ 24, 998 A.2d 342 (“We are, of course, free to affirm a

summary judgment for reasons different from those upon which the Superior

Court relied.”).

[¶8] Although Brooks and Smith argue that additional facts are needed

to address the MMA’s argument that the supermajority requirement in the LUO

is unenforceable, the MMA’s argument is straightforward, is purely legal, and

depends only on the language of the relevant statutes and the uncontested

contents of the Town’s charter. Brooks and Smith had a fair opportunity to

respond in their reply brief, and they are not prejudiced by our choice to

address the merits of that legal argument.1

[¶9] Given that we can address this appeal on alternative grounds raised

for affirmance based on the evidentiary record before us, that this will not

1Ordinarily, we do not entertain a new argument raised in an amicus brief. See State v. Sloboda,
2020 ME 103, ¶ 19 n.8, 237 A.3d 848. Here, however, the Town expressly endorsed the MMA’s
argument, and because the argument presents alternative grounds for affirmance, we could have
ruled based on those grounds sua sponte. Cf. id. (addressing a jurisdictional argument raised by amici
because the issue could be raised at any time).
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prejudice any party, and that ruling based on the alternative grounds will serve

the interests of judicial economy and provide guidance to the bench and bar,

we exercise our discretion to address the merits of this appeal on those

alternative grounds.

B. By statute, only a simple majority was needed to enact the LUO
amendment.

[¶10] The language of the relevant statutes is clear. Title 21-A,

section 723(4) provides, “A referendum question is determined by majority

vote.” Title 30-A, section 2501 provides, “Except as otherwise provided by this

Title or by charter, the method of voting and the conduct of a municipal election

are governed by Title 21-A.” Because the Town’s supermajority requirement

was contained only in the LUO, not in its charter, that requirement is

unenforceable.

The entry is:

Judgment affirmed.

Erica Johanson, Esq. (orally), and Paige Eggleston, Esq., Jensen Baird, Portland,
for appellants Erica Brooks and Victoria Smith

Jonathan P. Hunter, Esq. (orally), and Stephen W. Wagner, Esq., Rudman
Winchell, Bangor, for appellee Town of Bar Harbor
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Sarah J. Jancarik, Esq., Maine Municipal Association, Augusta, for amicus curiae
Maine Municipal Association

Hancock County Superior Court docket number AP-2021-10
FOR CLERK REFERENCE ONLY