No Moratorium Again For Now
Council directs town manager to let them know if certain big projects are in the pipeline
BAR HARBOR—A potential moratorium on five types of transient accommodations in several zones in Bar Harbor failed to become a reality during the Bar Harbor Town Council meeting on Tuesday.
The moratorium was initially suggested by Councilor Earl Brechlin at an April 2 meeting after a citizen’s email suggesting a pause on bed and breakfasts and that only require code enforcement officer approval rather than planning board approval.
Bar Harbor’s code enforcement officer, Angela Chamberlain, is currently changing the definitions of many transient accommodations. Those changes are expected to come before town voters in November.
The town’s land use ordinance defines different types of lodging. Those changes were voted in years ago. The Pathmaker Hotel, a recent project on Cottage Street, near the town’s municipal building, was decried by some residents and made the news because town rules allowed it to be reviewed only by Chamberlain and despite its size fit the town’s definition of a bed and breakfast.
If the rules change in November, that would no longer be the case.
The council ended up moving that the town has no moratorium at this time and instead directed the town manager to alert the council if an application comes in for the five listed accommodations before the November vote. Vice Chair Gary Friedmann framed it as a statement to the constituents about how the council feels about the subject.
The motion passed 4-3. Brechlin, Friedmann, Matthew Hochman, and Joseph Minutolo voted in favor. Maya Caines, Chair Valerie Peacock, and Kyle Shank voted against the motion.
TRANSIENT ACCOMMODATIONS
When people visit Bar Harbor and stay overnight, they stay in what the town calls transient accommodations. Those include rooms in hotels and motels and bed and breakfasts. It also includes campsites and then also RV sites. Short-term rentals in houses are a different category than rooms rented in hotels, motels, and bed and breakfasts.
In the past five years, there have been approximately ten building permits dealing with transient accommodations.
Earlier this month, Chamberlain held a listening session about potential changes to lodging definitions. There are currently 19 different uses with slight variations. Some require her approval, some require Bar Harbor Planning Board approval, but what requires what is not consistent. The potential draft changes winnow those down to seven definitions. There will be a Planning Board hearing on the potential changes on July 3.
“I was really trying to get away from what I think of as a style of building,” Chamberlain said of the definitions and instead define them by number of rooms, whether meals are served, and other factors.
TUESDAY’S DISCUSSION
Town Attorney Stephen Wagner of Rudman Winchell reiterated to the councilors on Tuesday that the moratorium’s purpose is to fill a gap in time between a future where changes might be happening and the present where things might happen before the changes occur.
The council’s job, he said, is to determine if that moratorium is necessary and if it is an emergency. An emergency ordinance requires a certain finding of fact. It also allows for a quicker pause that doesn’t require things such as a public hearing.
Councilor Kyle Shank said early in the discussion that his problem with the findings of fact for the moratorium’s language was the third whereas clause which read, “WHEREAS, the Town of Bar Harbor is experiencing unprecedented pressure on public facilities and infrastructure due to an increase in transient visitors.”
“I think that’s what we’re hanging our hat on,” Shank said, calling that his bone of contention. “I would love any facts that support that because we’ve only heard, I think, the opposite while in session. Right? At a previous point, we’ve had Bethany (Leavitt, public works director) discuss how public water has slack in the system and we are actively expanding through a bond our public infrastructure.”
He said that if that clause is taken out, the entire document falls apart.
“If we don’t have any facts to support it, I can’t support it,” he said.
Brechlin specified that he didn’t think the potential moratorium should apply to things in process or currently under construction. “There aren’t people running screaming through the streets, granted.”
If another application came through the pike, he asked, could the town move swiftly to create a moratorium.
Wagner said yes.
“If there’s a loophole, it’s going to be exploited and then there’s going to be a cottage industry telling other people how to exploit it,” Brechlin said.
Councilor Maya Caines asked if another big project like the Pathmaker Hotel was going to go before the planning department soon.
“There’s been no applications submitted. We haven’t done any checklists for a project,” Chamberlain said.
“I just don’t see how this rises to the level of emergency. Urgency sure,” Councilor Matt Hochman said.
Friedmann suggested directing the town manager to notify councilors if there was any interest in the five transient accommodations types mentioned in the document. Then, he said, there would be an imminent issue.
Chamberlain said she may not know if a project is coming up, but she has 30 days before issuing a permit. It was determined that the Council could enact a moratorium in that amount of time.
Shank said they were probably already influencing banks and business and projects just by talking about a potential moratorium.
“Our acts and discussion topics as the elected body in town can do things like moratoria can be disruptive to other elements so I just want to urge our caution unless we have facts in general that arise to an emergency. That’s why I’m very philosophically hesitant,” he said.
Peacock said that they would be disrupting the market by changing the rules in November. It would be the voters who would approve (or not) the potential changes in the definitions.
Speaking from the public, Charles Sidman said, “What I’m hearing is everybody saying that another hotel being called and regulated as a B&B should not happen.” Some, he said, like Shank are quibbling about whether or not it’s an emergency. “You’re essentially announcing a defacto emergency and a plan of action that nothing like this will happen again, but you’re not calling it that.”
He said this doesn’t seem straightforward.
“There is a loophole here,” Peacock said of the bed and breakfasts approval process. There are issues with the definition of bed and breakfasts, she said. “The definitions don’t disallow these things from happening.”
Instead, she said, it just changes the process.
“When we were voting on the vacation rentals, it just opened the floodgate,” she said, alluding to an increase of short-term rentals prior to the town’s program that capped them.
Minutolo agreed. He added that he believes that the infrastructure is lacking and there is a cost to tourism and there needs to be a way to parse out that cost toward the business community.
Caines said that she felt like the potential moratorium felt pointed to a specific individual. She also felt that the definition of “emergency” was up to interpretation. And that the councilors by saying if the issue comes back up, they can talk about it again, is an acknowledgement that there is an issue.
Later in the meeting, Stephen Coston of Stay Bar Harbor, co-developer of the Pathmaker Hotel said, “The fear that there’s going to be some rush of Pathmaker Hotels coming up? First of all if someone is going to do it, it’s going to be me.”
He said he doesn’t own any other properties in the downtown village. “The idea that it’s comparable to the surge in vacation rental permits,” he said is erroneous because just to get to the starting line of a project like the Pathmaker Hotel requires hundreds of thousands of dollars rather than paying a couple of hundred dollars because they feel they want to protect their property rights for their home. “That’s not even apples to oranges. That’s apples to something that’s not even a fruit.”
“I am not in a position to bring in any application for any B&B that would go before code enforcement in the downtown village.”
Cara Ryan said that the definitions have been there since 2010. “It’s pressure on our housing. All of this lodging development that we keep allowing,” puts direct pressure on housing, she said. “All of this lodging development that we keep allowing and not doing anything in our talk about tourism management towards managing does put direct pressure on our housing. Every hotel, every restaurant that’s seasonal, gobbles up more houses. We know this, but we don’t do anything about it.”
She said that this change of definitions should have been done years ago when those loopholes were first noticed and said it was not personal about the Pathmaker Hotel and its developers. She worried about B&Bs being allowed along the Eagle Lake Road and lower Main Street. Hotels aren’t allowed, but a B&B with no size limit is allowed, she said.
Earlier in the meeting, Tanya Ivanow had said, “I have been coming to Bar Harbor for more than four decades every decade on vacation. When I first came here, it was so charming. And over the years, what the planning has become. It’s not charming anymore. I’m going to cry now because it’s not the way it used to be.”
She called the Pathmaker Hotel a monstrosity. “I don’t understand how this town could have allowed something like that to happen because you’re losing what has made this town so precious before. Now, I don’t know, young ones don’t remember, but I do. It was so beautiful before but it’s getting worse and worse.”
Along with the Pathmaker’s small setbacks and height, which she said blocked surrounding structures, she was also upset about the West Street Hotel being four stories tall.
Later in the meeting, Hochman said, “We used to have block-sized hotels in this town. All of downtown was giant hotels. This is not new.” He said he wasn’t the biggest fan of the West Street Hotel, but before it was built, the site was a dilapidated area. Similarly, he said, where the Pathmaker is had been the site of derelict property that was vacant for years. “I’m very frustrated by some of this revisionist history.”
He said that they are working on the definitions issues.
“Stephen Coston. Monstrosity builder. Bar Harbor,” Coston said as he addressed the council said that he thought the moratorium’s draft was cleaner and it was not a hill he was going to die on. “This just seems like a made-up problem by people who don’t like me. I don’t know how else to put it.”
He said that the site would go from $5,000 in property taxes every year to between $40,000 and $50,000. This, he said, would help with the town’s property taxes. No one lived on that lot for years, now one person would.
Tom St.Germain, a co-developer for the Pathmaker Hotel and former Planning Board chair questioned whether or not it was an emergency and that it wasn’t sudden or unexpected. “This is neither sudden nor unexpected. The land use configuration in question has been in place for 14-plus years and was voted for by a 70% majority at the time.”
St.Germain said that the code enforcement officer is a seasoned professional. Unlike the volunteer planning board, she can’t grant modifications of standards. Having the planning department and that board weigh in on the moratorium didn’t happen, he said, indicating that they should.
St.Germain also stated that a single email by one person also doesn’t create an emergency.
“We had acquired two condemned properties,” he said of the site on Cottage Street, echoing Coston’s statement about how the building will yield tax revenue for the town now. Earlier in the meeting Coston said that he had never converted a residential home into seasonal housing.
St.Germain also questioned why Conners Emerson’s school project is not going to the town’s planning board, which would be another example of a large project that requires only code enforcement officer approval. Because of that, like the Pathmaker, it did not require a public hearing.
THE PROPOSED MORATORIUM THAT WAS DISCUSSED
LINKS TO LEARN MORE
To read the Town Council packet
Facts and Feelings: Town Council Wrestles With Potential Building Moratorium for Lodgings
Town Might Change Lodging Definitions
Rudman and Winchell’s site all about municipal moratoriums.
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Not only does this reader thinks the Pathfinder B&B will be a great addition to Cottage Street aesthetically, it will contribute greatly to our tax base which is constantly eroding from an unregulated proliferation of non-profit entities.
Well done!
When the pathfinder Hotel was built 2 homes were destroyed . Mine and the the one next store on Summer Street