Bar Harbor appeals panel refuses Criterion

BAR HARBOR – With a twice-deadlocked vote Tuesday, members of the zoning appeals board voted by technicality not to allow the Criterion Theatre to appeal the proposed expansion of Reel Pizza Cinerama.

Betty Jean Morison, owner of the Criterion, had filed three separate complaints appealing aspects of the planning board’s decision to deem Reel Pizza a restaurant and grant the necessary building permits for its proposed $360,000 expansion.

But board members decided first to define the issue of standing, thus, the merits of Morison’s arguments were never considered.

Board member Ellen Dohmen recused herself from the proceedings because, in a private conversation with Morison before her appointment to the board, she expressed her disapproval of the unfriendliness of Morison’s actions.

“One of the strongest threads that holds the tapestry of a small town together is the mutual support. … I have a real commitment to how friendliness feels in a small town,” Dohmen said.

With Dohmen in the audience, the appeals board consisted of only four members – two of whom spoke in favor of granting standing to Morison, while the others were strongly opposed.

Elieen McGlinchey Fahey, attorney for Morison, cited a recent case involving the Golden Anchor Motel, in which the zoning appeals board and a local court granted standing to a competing business.

Though not an abutting property owner, the Criterion is an “aggrieved party” under Bar Harbor’s land use zoning ordinance because Morison believes that the proposed 220-seat Reel Pizza Cinerama would affect her business adversely, Fahey said.

“To suggest that a business owner does not have the right to protect his economic and business interests … that flies in the face of our Constitution,” Fahey said.

Peter Roy, serving as attorney for Chris Vincenty and Lisa Burton, co-owners of Reel Pizza, claimed that a recent court case defined “aggrieved person” as a person or business that can show concrete evidence that they have been harmed by the planning board’s decision. Morison submitted no facts to support her assertion that the Reel Pizza expansion would definitely harm the Criterion.

Legal precedent also says that an “aggrieved person” may not be a business competitor of the party seeking planning board approval.

“Let’s not fool ourselves – it’s obvious what this appeal is about: it’s about an entity seeking the help of the board to stifle competition,” Roy said. “You should not find yourself being the tool of a disgruntled competitor. It’s not your duty.”

Roy also claimed that a decision in Morison’s favor would set a dangerous precedent, granting any business owner in Bar Harbor the right to file zoning appeals in projects proposed by competitors.

“You’re opening a Pandora’s box,” he said.

The board voted twice, splitting on a motion to grant Morison standing in the case. Board chair Robert Garland asked his board to express its reasoning with one more round of debate in hopes of a compromise.

But Garland and Paul Devoe remained opposed to Morison’s arguments.

“If we entertain every competitor’s appeal, these sorts of appeals will continue to come,” Devoe said.

Pat Curtis and Vice Chairman Sean Sweeney defended their opinion that Morison’s case be judged solely on its merits. The Bar Harbor zoning ordinance’s definition of an “aggrieved party” is broad – intentionally so, said Sweeney.

“I believe it was the decision of this town to do that deliberately, to give everyone a chance,” he said. “What’s the harm of hearing the situation?”

Because none of the board’s members would budge, the tie vote was interpreted as a defeated motion, per Maine Municipal Association guidelines, and Morison’s request for legal standing was denied.

Fahey did not say Tuesday whether Morison would pursue legal action.

Vincenty and Burton accepted the applause and congratulations of the several dozen friends and neighbors who turned out to support their effort.

“We always thought we had a very strong case,” Vincenty said. “Hopefully we’ll be able to get going.”