WESTBROOK – With both sides contentiously debating the legality of a petition that aims to rezone a Stroudwater Street parcel, the Westbrook City Council voted Monday to let residents decide the issue.

Voting 6-1, with Councilor Michael Foley opposed, the council made the difficult decision to send a question to residents that many believe to be illegal. The council’s second and final vote is scheduled for Monday, May 5.

Voters in June would be asked if they want the property between Stroudwater Street and the Westbrook Arterial to revert to its prior zoning, which was an ambitious contract zone known as “Stroudwater Place,” established by Westbrook resident Jason Snyder.

Snyder’s development failed to get off the ground in the five years following the implementation of the contract zone, and after foreclosure last year, the land was sold back to mortgage lender Kimco Capital.

A rezone of the 60-acre parcel was approved in February, whereupon Portland developer J.B. Brown & Sons purchased the property with plans to establish housing lots off Stroudwater and retail stores, a hotel and multi-family dwelling off the arterial.

Following the council decision in February, Snyder and his brother gathered the necessary 1,216 signatures needed to add the question to the city’s June 10 ballot, but many legal opinions have stated that to force a contract zone on an unwilling landowner would be illegal.

However, with no case law established, Westbrook officials are faced with the difficult situation of either sending a potentially illegal question to referendum, or not complying with the city charter by not sending a validated citizens initiative to voters.

Vincent Veroneau, president and CEO of J.B. Brown & Sons, said during a public hearing on the petition Monday that he believes it is “important for citizens to understand the outrageous demand” by Snyder.

He said that Snyder’s contract zone had failed and is “unworkable. It’s patently unfair to impose a contract on an unwilling property owner,” he said. “Mr. Snyder continues to perpetuate what is really an uneconomical and un-environmentally-sound contract.”

Attorney Tim Shannon, speaking on behalf of J.B. Brown, also made the argument that the referendum question is illegal.

“If the question is legally doomed, should this council put it out to public vote?” he said. “Contract zoning is a zoning reached by agreement between two willing parties.”

Veroneau indicated that if voters approve a rezone in June, he would challenge the decision in court.

City attorney Natalie Burns has also said that she believes the question is illegal, and according to Burns, attorneys from the Maine Municipal Association have echoed the stance.

In his memo to the City Council Monday, City Administrator Jerre Bryant recommended against sending the question to referendum.

“While neither the courts nor the Attorney General’s office will address this legal question unless and until such an action is enacted into law, the City Council needs to decide if a proposal that is likely illegal and unenforceable should be sent to voters,” he wrote.

Snyder said Monday that his petition is a “zoning issue, about zoning standards” and is “what the community wants. This has nothing to do with contract law,” he said. “We’re saying that we don’t think that the decision to change the zoning in Stroudwater was a decision that was consistent with the community views.”

Snyder added that he has also sought legal opinions, which have stated that his effort to reinstate the contract zone may not be illegal.

The majority of councilors said Monday that while they believed the petition to be unfair and perhaps illegal, they were bound by the charter to uphold the initiative process and allow voters to take up the issue.

Council President Brendan Rielly said either decision likely would end up in litigation and he had to decide which question he wanted a judge to resolve – “whether we had a right to ignore the petition, or if someone has a right to impose a contract zone on someone.”

Rielly said he leaned toward the second question, “because in the first option, we’re the ones getting sued, and we’re the ones who will pay for the litigation. I disagree with this entirely, but we have a duty to send this out to voters.”

Foley, who supplied the lone vote to deny, said during the meeting that he has heard from multiple petition signers who have said they were mislead by Snyder. He said that it is unfair to ask residents to vote on such a complex issue surrounded by “misinformation.”

On Wednesday, Snyder said that he was pleased with the council’s decision, but was concerned for the views of many councilors that the question is illegal.

“This is simply the reinstatment of a zoning that was the law of the land on the city books for over five years,” he said. “To say that something that was legal for five years can not be reinstated because it’s illegal, is not just nonsense, but it holds no water.”