Cruise Ship Plan Repeal? Turns Out They Like It--Mostly

Bar Harbor Warrant Committee and Planning Board Make Recommendations

BAR HARBOR—In split votes both the Bar Harbor Warrant Committee and the Bar Harbor Planning Board recommended repealing the town’s current cruise ship disembarkation rules. Those rules place a daily 1,000 cap on cruise ship disembarkations. They also place the rules within the town’s land use ordinance and spawned legal actions against the town.

It will be up to the voters to have the final say in November on whether or not to repeal the rules.

If so, another cruise ship disembarkation plan will go into place in December. That plan creates daily, monthly, and seasonal caps as well as creates days where cruise ships cannot visit the town. That plan, created by town staff and the Town Council, is outside of the land use ordinance and requires contracts with both the piers that accept tenders and individual cruise lines. In those contracts there is an agreement that the pier owners and cruise lines will not sue the town.

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THE VOTES

Both the Bar Harbor Warrant Committee and the Bar Harbor Planning Board made recommendations on various land use amendments this week. Voters see those recommendations on their ballots when they vote on the issues themselves in November.

While there are four land use ordinance amendments, the one that’s been receiving the most press and the most controversy is the land use amendment for cruise ship disembarkation.

The Warrant Committee voted in favor of recommending the repeal, 11-2. Carol Chappell and Barbara Dunphey voted against. Four members of the Planning Board voted in favor of recommending the repeal, two voted against. The nay votes were from Guy Dunphey and Teresa Wagner, the board’s newest members. Planning Board members are appointed by the Town Council.

In 2022, during the vote about the citizens’ initiative that created those changes, the Warrant Committee did not recommend it. The recommendation failed 6-9 because there was a noticeable lost opportunity to work with town staff, said Warrant Committee Chair Chris Smith.

“I think we’re seeing that bear fruit now,” Smith said, and added that she thinks things can be improved on in both tracks: the original and the one suggested by the Town Council.

Dunphey and Wagner both expressed reservations about the new plan and voted against the recommendation to repeal the current plan.

Dunphey had questions about small boats being allowed on blackout dates and whether or not a citizens’ initiative could change the disembarkation numbers.

A citizens’ initiative led by Charles Sidman and six other signers is what put the current plan on the November 2022 ballot. The six other signers were Amy Sidman, Barbara Fenderson, Art Greif, Donna Karlson, Pat Murphy, and Jim O’Connell.

However, Planning Board Vice Chair Ruth Eveland said that she does not believe the citizens’ initiative belongs in the land use ordinance. She also said this in 2022.

“It’s not just about where the ordinance resides, it’s also about the content of the ordinance,” Wagner said.

She said enforcement was difficult because the town had an unwilling partner in the pier owner. She said the only way to be litigation free is to give the cruise lines everything they want. However, the cruise lines are not suing the town. Charles Sidman, APPLL, the tender businesses, and other related land-based business are.

Clark Stivers said that the only corrective measures in the current system is court.

Planning Director Michele Gagnon said that she wasn’t advocating one track of controlling cruise ship disembarkations over another. However, she said the way land use ordinance amendments typically work is that the town’s code enforcement officer, planning director, and Planning Board administer it.

“They have to be able to figure out how to administer that language and does it work or is it so flawed that it opens you up to lawsuits or you can’t really do what is there,” she said.

The message was sent, she said, and the initiative did its job. This vote, she said, is once again in the citizens’ hands.

“There was a lot of unintended consequences,” Gagnon said of placing the cruise ship rules in the land use ordinance.

“When the ship is gone, the violation is gone,” she said. “Land use is about what happens on the site, at that time, one time in place. The planning board looks at the issues, looks at if it complies with the performance standards, makes a ruling and it’s over.”

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ADDITIONAL DISCUSSION

Chapter 50, Town Manager James Smith told the Warrant Committee members Tuesday night, lays out the rules and regulations and creates a contract that would materialize and bind within 30 days of the repeal of the current land use ordinance. Only with voter approval could the contract be tinkered with.

James Smith said that the Council proposes the change but the citizens will dispose. They did not want something that could be tinkered with too easily, he said. And there is a need for political stability around the issue. It’s changeable, but not too easily changeable and requires the community and Council to work together to put something on the ballot in the future, he said.

Under the current rules, the town can’t deny anchorage even if a ship is huge. The contracts specify that newly booked ships can’t have lower berth capacities over a 3,200 lower berth capacity. This prevents giant ships from visiting.

Some were concerned that the Town Council would be able to just easily tweak the amount of visitation caps with no public input. Any changes to the contracts have to happen within a 90-day window that starts in the second year of the contracts and then occurs yearly. The Council can make a recommendation to raise or lower the cap, however, Town Council Chair Val Peacock stressed, it would have to go to vote. This is part of the rules being proposed, which would take effect if the repeal of the current rules goes forward.

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CONFLICT OF INTEREST VOTE IN THE CRUISE SHIP RECOMMENDATION

The Warrant Committee vote came after a conflict of interest vote about member Eben Salvatore. Salvatore oversees the Walsh properties in Bar Harbor. Those properties include the site where cruise ships tender, which he said was a small portion of his overall job. He receives no bonus, he said, according to the number of ships visiting or tendering amounts. The companies are part of the federal lawsuit against the town that is currently in appeals. The tendering location has also been issued a notice of violation from the town for not having a permit under the existing ordinance.

Member Julie Berberian brought up a potential conflict of interest with Salvatore. Her motion was seconded by Chappell.

Multiple Warrant Committee members referenced an ethics workshop that occurred August 28. There, John Hamer a lawyer with Rudman Winchell, explained distinctions between town boards, councils and committees and the work they do as legislative and quasi-judiciary when it comes to conflicts of interest.

Quasi-judiciary basically means “court like.” It is a committee that acts like a court. The town’s Appeals Board (where members are appointed) would be quasi-judiciary.

“The basic difference between the two categories is that legislative decisions establish policies for future application, while quasi-judicial, or administrative decisions are the application of those policies,” according to Community Planning and Zoning.

Hamer said that in quasi-judicial boards like the Bar Harbor Appeals Board, the applicant must get due process, and the decision maker needs to be free from bias and neutral.

He also said that as an appointed or elected official, those serving have a duty to the board and to carry out those duties. That’s why he’s also not in favor of abstentions. An abstention is a no vote. It’s also not serving the town or the board.

When enacting legislation or recommending ordinances—which is quasi-legislative—there is broader discretion to have opinion, listen to others, and take action. People who are elected are elected by others who likely know their jobs and their concerns and interests, he said.

Warrant Committee Chair Chris Smith said the board visited the issue in 2022 with the citizens initiative. “As a body, we never stray into the quasi-judicial.”

The committee voted that Salvatore did not have a conflict of interest with Julie Berberian, Carol Chappell, and Barbara Dunphey saying that he did.

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OTHER AMENDMENTS

Both boards unanimously voted in favor for all other amendments.

The transient lodging accommodations uses replaces nineteen existing uses and definitions with just seven, an attempt to clean up and create consistency in the town’s land use ordinance.

It also:

• Modifies nonconforming provisions to reflect new lodging uses.

• Adjusts relevant general review standards for parking and loading requirements.

• Removes general review standards for cabins and cottages.

• Replaces existing lodging use references with new use references in Article XIII Design Review.

• Requires minimum parking standards for all transient lodging accommodation uses.

• Requires site plan approval or conditional use approval for all seven new transient lodging accommodation uses.

• Amends Article III to replace existing transient accommodation uses with the new lodging uses.

Chappell said that the Planning Board and public that were watching it closely are comfortable with it.

The filing and approval amendment clarifies that “only amendments to shoreland zoning regulations need to be approved by the Commissioner of the Maine Department of Environmental Protection to be effective.”

It also makes it so the land use ordinance doesn’t have to be filed with the Hancock County Registry of Deeds.

The submissions amendment just changes the mandated number of hard copies to be submitted to the Appeals Board from 12 to 10.

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LINKS TO LEARN MORE

To watch the Planning Board meeting

To watch the Warrant Committee meeting

To watch the Ethics Training/Workshop

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Disclosure: My husband, Shaun Farrar, was elected to the Warrant Committee where he serves. Though we are married, we don’t always agree about all issues (possibly because we’re married?), but I want to always disclose this to our readers who may not know.

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