Cruise Ships State of Affairs in Bar Harbor May Be Declared "Untenable"
Higgins' Pit Up Again and Town Manager's Six Month Review Scheduled for Tuesday Meeting
BAR HARBOR—The Town Council’s Tuesday night agenda deals with cruise ships. Again. And it does so in multiple ways that could include approving a resolve that would charge the town manager with trying to make better tools to deal with cruise ship disembarkations.
It’s a lot to unravel. First, the councilors must decide when to schedule a public hearing on the new Cruise Ship Disembarkation ordinance. Before them is an amended version of the order from their last meeting. That time, the Council, lawyers, and some citizens had multiple worries about the language and rule making.
The items before them Tuesday deal with the new rules in the town’s ordinances and operating procedures that cut cruise ship visitations to 1,000 disembarkations a day. If there are more than 1,000 disembarkations, a series of escalating fines occur per person. These rules were approved by town voters in November 2022.
However, that limit and its installation in the town’s land use ordinance has been challenged in federal court by some impacted business owners; APPLL, a new nonprofit of business owners and others; as well as the Penobscot Bay Pilots Association, which covers the ship pilots. The town won that challenge, but it is now appealed. The businesses and pilots have also asked for an injunction, or “stop” to moving forward with the changes until the appeal’s fate has been decided.
THE DISEMBARKATION ORDINANCE
This new ordinance was discussed at the end of the last Town Council meeting.
At that meeting, the Council took no action on the ordinance after hearing multiple legal questions during public comment, much of which came from two attorneys who are representing the Association to Preserve and Protect Local Livelihoods (APPLL), which is appealing the federal decision upholding the ordinance. The Penobscot Bay Pilot’s Association is part of that appeal .
The ordinance changes, approved by voters in November 2022, cap cruise ship disembarkations to 1,000 or less a day without fines. It also places the changes within the town’s land use ordinance and at least partially under code enforcement’s purview.
Back in 2021, a town survey that elicited almost 1,400 respondents, found that of those respondents, 55 percent thought the overall impact of cruise ships was negative. The same percentage found that the ships detract from Bar Harbor’s image as a tourism destination connected with Acadia National Park.
The town had been managing cruise ship arrivals through memorandums of agreement between the town and the cruise lines. The most recent agreements set daily limits of 3,500 to 3,800 passengers and also monthly limits, which town officials believed would make cruise free days each month. The limits changed depending on the season. Much of the town’s business community had supported this plan.
The Council meeting earlier this month was the second iteration of the draft rules to enforce and implement the Cruise Ship Ordinance, which requires rules to be implemented for it to be enforced and enacted. Town staff has prepared the rules, a process which Town Attorney Stephen Wagner said is consistent with the direction the Council has provided.
On Tuesday, the Council and public will see if the third time will be the charm to get the proposed ordinance to public hearing.
The new changes are explained in the language of the ordinance in a “whereas” clause, stating,
“WHEREAS, an earlier draft of this ordinance amendment was presented to the Town Council May 7, 2024 and the Council took no action on the item at that meeting pending possible changes.
“The below draft includes the following edits:
“Disembarkation Ordinance 8(B) refers to enforcement by the CEO pursuant to LUO 125-11. This was changed to refer to both 125-100 and 101.
“Disembarkation Ordinance 6(C)(3) cross reference to ‘5(C)(4),’ changed to 6(C)(4).
“Disembarkation Ordinance 7(C) revised to clarify that access is consistent with 30-A MRS 4452 and authorized CEO to obtain administrative search warrant if access is refused.
“Disembarkation Ordinance 6(C)(1) and (2), and (4) revised slightly for clarity.”
A SERIES OF PUBLIC DISCUSSIONS
The Council has another resolve before it. This one is “to schedule series of public discussions and begin a process to make necessary changes to the Land Use Ordinance for the disembarkation of cruise ship passengers in the Town of Bar Harbor.”
This is a resolution for action and seems related to the March 6 public statement (sometimes called a press release by some), which is being appealed by Charles Sidman, lead petitioner for the citizens’ petition that changed the cruise ship rules, Council candidate, and defendant-intervenor in the court case. The town has also asked the court to dismiss the other cruise ship case, involving lead petitioner Charles Sidman
Key language in the resolve calls the multiple lawsuits that the town is facing untenable for its residents and also that the Council is “committed” to “re-articulating” the objective of the ordinance so that it “can be administered and enforced.” If passed, it would direct Town Manager James Smith to begin to get feedback and input from the public and “propose better regulatory tools to reduce and manage” cruise ship visits.
THE THIRD CHANGE
The third potential change is a simple tweak to include the word “chapter” in the Port and Harbor Ordinance.” This ordinance clarifies the town’s harbor master’s authority for the new cruise ship rules. It’s just one piece of many to get those rules to a place they can be enforced.
WHAT ALL THIS MEANS AND WHAT COUNCILS CAN AND CAN’T DO
After Sidman’s appeal of that March 6 statement, Council Chair Valerie Peacock wanted people to know that the council can’t change the town’s land use ordinance substantively and that all the current councilors know this.
Her comments to the Bar Harbor Story and Mount Desert Islander, Friday, came after an Appeals Board meeting on Tuesday, May 14, when she said that was implied by an attorney at the meeting.
What councilors can do is fix tiny things, a misspelling here, a typo there. They are often part of the process of ordinance amendments and changes. They bring things to public hearing, can table items, and so on.
Similarly, she said, neither through that press release nor at any other time, is the Council interpreting the land use ordinance or “messing around” with it, which was also said at the meeting.
“We know that it’s not in our power to change or amend in any substantive way,” Peacock said.
During that Appeals Board meeting, Charles Sidman, lead petitioner for cruise ship limits and defendant intervenor for the federal court case against those limits, appealed a Town Council March 6 press release, which mentioned when the town would be enforcing the 1,000-a-day disembarkation limit, which was approved by voters in November 2022. The timeline did not include enforcing the disembarkation caps this season, which began less than 90 days after the March 1 federal court decision that upheld the new disembarkation limits, ruling in Bar Harbor and Sidman’s favor.
During this process, the town has had other court cases brought against it (one concerning the former two-thirds rule and one about the charter) and lost a town manager, had an interim town manager, and hired a new one on top of its normal business. Bar Harbor’s police chief also retired and another officer was promoted to chief. The town did not continue with its sustainability coordinator position or its communications coordinator position. It lost its IT staff, had planning department hires and losses, and has been short staffed in its dispatch department for emergency services. It’s also begun a school reconstruction, public work projects, and is trying to determine the fate of a voter-approved solar array project that has become complicated.
It’s a lot.
Creating the rules for the changes isn’t simple or quick, Peacock said, and has been different than other processes for land use changes because of multiple factors. The ordinance came through a citizens’ initiative and this initiative (unlike a failed retail marijuana ordinance) did not involve town staff in its creation; it did not have the enforcement process (rules) written within it, like the short-term rental ordinance; and it uses both the harbor master position and the code enforcement officer position for its implementation and enforcement.
The rule making for those limits, Peacock said, began with former town manager Kevin Sutherland at the end of 2022.
“We’ve been working on this since the beginning, trying to figure out our way through this,” Peacock said. “And it’s been a lot of work to do that.”
The rules have to be brought before the Council, a public hearing needs to be scheduled, and then once passed, there is a 30-day wait before rules are enacted.
“It’s really clear how much care is required to enact these rules,” she said.
There was a court injunction which occurred which kept the town from enforcing the ordinance, but the rules were not created yet either. Potential rules and language have gone before the Council in the last 18 months, but have gone back for more work each time. Some of the work to create and then revise the rules and language was with Mr. Sidman, initially. That stopped once he sued the councilors individually and brought the March 6 statement to the Appeals Board.
There has also been discussion both at the Appeals Board level and a candidates’ forum on Wednesday about fining the docks and businesses where the cruise ships come in. This, she said, can’t be done until rules are in place, but also the process of fining for passengers who go over that 1,000 daily limit (which is not yet in place) occurs via a litany of steps and includes the code enforcement officer initially issuing a notice of violation.
Also on May 9, APPLL released a press statement about the motion to file a preliminary injunction, which we wrote about last week.
HIGGINS’ PIT, TOWN MANAGER REVIEW, SPECIAL AMUSEMENTS
Also on the Council’s Agenda is the Higgins Pit Solar Array project. An updated 16-page memo is posted on the town website separate from the agenda packet. This is because of the large images it contains. During the meeting, Peacock will entertain suggestions for language to complete the resolve.
In executive session, the Council will review Smith’s first six months as town manager.
The Council will also potentially correct an error in the shellfish licensing ordinance, set taxi licensing fees, and review multiple special amusement permits and potentially accept a $3,000 grant for police vests.
LINKS TO LEARN MORE
Council Packet, which includes ordinance language and potential resolves
To watch the meeting on Town Hall Streams
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