The Waterville City Council recently received a legal opinion on its process for considering a proposal for a zoning change on Pleasant and Middle streets to allow the former Sacred Heart Catholic Church property to become an events center. Rich Abrahamson/Morning Sentinel file

WATERVILLE — A series of apparent missteps by the Planning Board and City Council in dealing with a request to rezone the Sacred Heart Catholic Church property is forcing them to backtrack and redo the entire process.

The city this week received a legal opinion from Portland attorney James N. Katsiaficas of Perkins Thompson Attorneys & Counselors at Law, following a number of contentious hearings at which neighbors have voiced criticism of the project. The new legal opinion says the process used for dealing with the request to rezone the property at 72 Pleasant St. and 5 Middle St. to allow for an events center there did not follow city rules and state law.

After reading the legal opinion several times, Mayor Jay Coelho on Thursday acknowledged the city has, unknowingly, not been following proper practice, but it will do so going forward.

“We’ve been doing things a little backwards, and it’s good time to clean house,” he said. “We dropped the ball as a city when we first started this. It happened now, we all know, let’s fix it.”

The Planning Board did not fully provide notice of public hearing required by state law; has not provided the City Council with a written report stating its approval or disapproval of the draft contract zoning ordinance and the reasons it recommended it; and the board will not be able to do so within 30 days of its public hearing, the legal opinion says.

Also, the public has not had the opportunity to comment on the matters added by the City Council during its first reading of the draft contract ordinance, Katsiaficas says in his seven-page opinion.

The attorney recommends the City Council at its meeting Tuesday night do a few things to maximize public input into the rezoning request, ensure the City has complied with procedures in its ordinances and state law, and make the best case that the city has met state law requirements for a contract zoning, should the council’s decision ultimately be challenged in court.

Councilors should agree on language they want to see in a proposed Contract Zoned District Commercial-A and refer that language to the Planning Board to hold a public hearing on the council’s draft, with all notice required by the zoning ordinance and state law, according to the opinion. In addition, the board should issue a written report to the council within 30 days of the hearing, stating the board’s approval or disapproval of the proposed amendment and its reasons, the opinion states.

Such a report not only needs to determine if the proposed uses are “consistent with the existing and permitted uses” in the area, but also “has to take a deep dive into the Comprehensive Plan to look at its goals and policies, and if they are inconsistent, try to explain whether, and if so, how, they can be read to support the proposed rezoning.”

In his summary, Katsiaficas notes that the council asked if the proposed Contract Zoned District Commercial-A is lawful.

“The proposed Contract Zoned District Commercial-A may be lawful but we cannot provide an opinion because the State law and City Contract Zoning processes have not been followed,” it says. “This is no one’s fault, but simply arose out of timing and long-standing practice, and can be remedied.”

The city recently hired the law firm to advise it on whether the Planning Board and City Council were acting appropriately on decisions about whether to rezone the Sacred Heart Catholic Church property to allow for an events center to be developed there. City Manager Steve Daly said the city asked the firm to look at all of the information concerning the recommendation the Planning Board made to the council about the rezoning issue and the council’s first vote June 15 to approve rezoning the property.

The process the city has long followed on zoning issues is that once the council receives a request for rezoning, it typically sends the request, with little to no discussion, to the Planning Board for public hearing and recommendation. The Planning Board goes through the process and then makes a recommendation to the council and the council has the final say.

City Solicitor William A. Lee III normally issues legal opinions on such matters, but a lawyer in his firm represented Jennifer Bergeron, who wants to buy the church property to develop it into an events center that would host weddings, receptions, craft fairs, concerts and other activities. Daly said he understand that attorney also has recused himself from the zoning matter.

Bergeron and two partners are part of BACAS, a company that is asking the council to rezone 72 Pleasant St. and 5 Middle St. from Residential-B and Residential-D to Contract Zoned District Commercial-A. Bergeron says the house on the property would continue to be used for residential purposes as part of the plan.

The Planning Board on June 7 voted 6-0 to recommend the council approve the zone change with several conditions, including that no alcohol be served on the property, the venue hours be restricted to between 7 a.m. and 9 p.m. and the church office, a separate building on the site, be used only by the events center. Board members who laid out the conditions maintain that a city ordinance and state law say a new use must be consistent with the current and permitted use, a church, and an events center is not consistent with that use. Member Bruce White was absent from the meeting.

On June 15 most councilors ignored the Planning Board’s recommendation, voting 4-3 to rezone the two parcels to Commercial-A and amend the contract zone to say alcohol may be served on the site, the center would close at 11 p.m. on weekdays and midnight on Saturday, outgoing traffic from the site would be diverted to Middle and North streets, and if Bergeron sells the property, it would revert back to the former zone. Bergeron said it is necessary to serve alcohol at the center and 9 p.m. is too early to close it.

An attorney, Councilor Claude Francke, D-Ward 6, argued that the council’s decision could open the city up to a costly lawsuit.

Bergeron and her supporters say being able to turn the property into an events center would preserve an historic church that otherwise would lie vacant or be razed, but others say it is a quiet residential neighborhood and should remain so. Some of the neighbors are older people who have lived in their homes for decades and say weddings and other events that serve alcohol would produce noise from vehicles parking in the lot and on streets, and people leaving late at night, slamming vehicle doors and shining lights in windows.

Contacted on Thursday, Planning Board Chairperson Samantha Burdick said it was her understanding that the City Council and Planning Board have had a long-term understanding to waive the necessity of the written memo before the council votes on the zoning change.

“The Planning Board proposed a solution that balanced the request of the developer with the needs of the neighborhood in order for the rezoned property to have a low-impact change on the neighborhood consistent with the comprehensive plan,” Burdick said. “We look forward to another transparent public meeting, and hearing concerns from all parties.”

Coelho, the Waterville mayor, said that the council on Tuesday will discuss the matter and decide what language to send to the Planning Board on the rezoning issue. The board will go through its process and then recommend to the council.

“Make a recommendation of what you think you’d like to see at the church, tell us if it’s legal,” Coelho said. “At the end of the day, it’s easy. It’s not an emotional decision. Does it follow the law?”

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