September 26 Referendum in Kittery Raises Constitutional Issues, Other Legal Questions

Fairness, property rights and a 1988 Maine Supreme Court case at heart of legal debate

KITTERY - The legality of a last-ditch effort to stop a proposed outlet center along Route 1 by backdating an amended ordinance remains an open question as Kittery voters prepare to go to the polls on Tuesday.

Noted Maine municipal and land-use attorney Durward W. Parkinson said Thursday that he agrees with legal experts who say the Sept. 26 referendum raises constitutional questions of fairness and property rights as well as the relevance of a 1988 Maine Supreme Court case that addressed the issue of retroactive ordinance changes.

Maine case law does permit a town to make an ordinance retroactive. But the definitive Maine Supreme Court case on the subject, cited by members of the citizens group trying to stop Kittery Marketplace, contains a significantly different set of facts.

In the 1988 case, City of Portland vs. Fishermans Wharf Associates, the law court ruled that Fishermans Wharf should have known when it made application with the city that a pending referendum contained a retroactive clause that would invalidate its project if approved. And, at the time the referendum was approved and the retroactive zoning change enacted, Fishermans Wharf was not far enough along in the approval process to establish "vested rights" in the project, the court ruled.

The Kittery situation differs in three major ways: A June referendum that contained the amended ordinance had not been initiated when Kittery Marketplace applied with the town. The June referendum, which reduced the amount of developable land in the mixed-used zone, also did not contain a retroactive clause. And by the time the amended ordinance was enacted a month later, Kittery Marketplace was already far enough along in the approval process ö in legal terms ö that it was not affected by the new zoning law, according to Town Attorney Duncan McEachern in a published report in July.

"What this really comes down to is a group of Kittery residents who don't want another outlet center and will stop at nothing, no matter what it costs the town or whose rights are trampled," said Parkinson, a Kennebunk lawyer with 18 years of experience in municipal and land-use law. "The Constitution is very clear on questions of due process and property rights, and courts across the country are becoming more sympathetic to the plight of landowners and developers who are treated unfairly in these types of citizen-initiated actions."

On Tuesday, Kittery voters will be asked whether to amend the ordinance amendment enacted in July and make it retroactive to September 1999. The referendum is aimed at forcing the owners of two Route 1 outlet center projects to abandon their plans. A 'yes' vote would make the ordinance retroactive, putting the projects out of compliance and halting them. But a 'no' vote would allow Kittery Marketplace to proceed through the vigorous approval process that began months ago.

"We believe our project will be good for Kittery," said Ed Huminick, a Salem, N.H. accountant and the managing partner of Kittery Marketplace. "We also believe the project has a legal right to proceed through the approval process. But as reluctant as I am to say this, if our project is halted, we intend to exercise our right to go to court and seek justice. As expensive as litigation is for everybody, we think our points are valid and supported by the law."

The protection of individual property rights is deeply rooted in the Maine and U.S. Constitutions. So is the notion of fairness and due process under the law, said Parkinson, who is providing legal assistance to Kittery Marketplace. Targeting a specific project by any means possible, even through referendum, has been found more and more across the country to violate the rights of landowners trying to develop their land, he said.

"It's not as simple as saying the will of the people carries the day," Parkinson said. "There are laws built into the Constitution that strike a balance with property rights, that protect civil rights. Individual property rights are still pretty sacred. The town is free to control its destiny but it must do it in a fair way."

Tuesday's referendum, placed on the ballot by the same citizens group, is an effort to put the retroactive clause in now, when Kittery Marketplace is even further along in the approval process. Backdating an ordinance after a project has received substantive review puts Kittery on shaky legal ground, legal experts say.

"They have tried many different ways to kill this project and this is a last, desperate attempt to do so, and they are being misleading if they say the courts support this," said Parkinson. "There's a fairness issue at stake here. When does it end? If this is legal, then every landowner and developer should be worried."

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