For Bar Harbor, Potentially Changing Cruise Ship Regulations Moves Forward And Grows More Heated

Aug 28, 2024

BAR HARBOR—The fate of the town’s cruise ship disembarkations limits will be in the voters’ hands again this November.

In an August 27 marathon meeting that was occasionally testy and where some councilors and others also occasionally appealed for kindness and civility and to focus on policy not people, the Bar Harbor Town Council voted 6-1 in favor of Chapter 50, a different way of creating cruise ship caps. Vice Chair Gary Friedmann voted against the changes.

Those changes do not go into immediate effect.

The changes (Chapter 50) are contingent on a potential November repeal of the portion of the land use ordinance that is currently governing cruise ship disembarkations.

For those changes to go forward, the voters must first repeal the current 1,000-day-caps based on permitting disembarkations on private property. Those changes to the town’s land use ordinance were voted on in November 2022 and brought via a citizens’ initiative led by Charles Sidman, a local resident. In the current iteration, there are no monthly caps other than 30,000 to 31,000, which would occur if the top limit of 1,000 passenger disembarkations happened each day.

Last night, the Town Council voted to put that potential repeal on the November ballot for voters.

The potential alternative (Chapter 50) is a licensing situation developed through individual contracts with cruise lines and the disembarkation service owner. The current limits are meant to be achieved via permits and fines to the pier owner if more than 1,000 disembark. At least one notice of violation has been sent to those property owners (Golden Anchor, LC, owners of 55 West Street) this August.

The caps in Chapter 50 would have daily limits of 3,200 no matter what month. Each month has a separate limit. If the daily limits (determined by each ship’s lower berth capacity) are met, then the monthly cap would be reached next.

The year-round daily limit would be 3,200 people, and the town sets a monthly cap that varies by season.

Council Chair Valerie Peacock said that since the cruise ship changes began two years ago, she has felt that the Council has been put on the defensive, beginning with having to defend the ordinance in court.

“Even if it survives all the upcoming legal challenges,” she said, “The LUO gives the dock owners and cruise lines control over which ships visit and how many passengers come ashore. The town, watching from the sideline, hopes that big ships won’t come. The town hopes that no more than 1,000 passengers will disembark. And if they do, we watch and document and bring the dock owners to court, and have to prove our case, and hope a judge upholds our rule.”

Currently, the dock owners have not applied for a permit, which is part of the 1,000-a-day process. Arguments have been made that the use of the private land for cruise ship disembarkation was pre-existing and therefore allowed without the limits.

“Again, we have to take them to court and prove that they have to” get that permit, Peacock said.

While some have said they perceive of the Town Council as afraid of litigation, Peacock said it isn’t about fear. “We could continue to defend ourselves, to maintain our position. And, they can continue to bring challenges. We might win them all. But at what expense to our wallets and to our morale and our sense of community? And there’s always risk of losing.”

She believes Chapter 50 builds on the town’s position of strength because it cuts dock owners out of visitation issues with the town instead dealing directly with cruise lines, allows the town to regulate ships and disembarkations without on-site counting, and releases the town from future claims against it even if the town ends or reduces cruise ship visitation.

“This is not weak policy,” Peacock said. “This is our game. Our rules.”

There were four main orders related to the cruise ship disembarkations:

Order 30 (to amend Ch 50) passed 7-0;
Order 31 (to adopt Ch 50) passed 6-1, Friedmann against;
Order 32 (to repeal Ch 52) passed 7-0,
Order 27 (to place Land Use Ordinance Amendment – Cruise Ship Disembarkation on November 5, 2024 town meeting warrant) passed 6-1, Friedmann against.

PUBLIC COMMENT

Approximately 35 people spoke during public hearings on both amendments.

Many who objected to the change said that they did not think fines were high enough; wondered where the 3,200 limit came from; said that the number was not enough of a reduction; said the voters had already voted; said that any litigation should be paid via cruise ship fees and not the taxpayers; and said that the town is giving away its power. A couple attendees accused the councilors of being corrupt.

“I and many others do not trust this process,” Diane Vreeland said. “If our wishes are repealed, we have lost all of our rights and the Council and the cruise ship industry can do whatever they want to do.” The Council, she said, has no respect for the rule of law.

Others, like Doris Plummer, said Chapter 50 didn’t represent what the voters approved and wasn’t a significant reduction.

“There are so many parallels to the worst politics in the world, it ain’t funny,” Jim O’Connell, one of the initiative’s creators said. “By casting my vote for 1,000, I’m being told by Cruise Ship International and the Town Council that the initiative is somehow rigged and unless I accept 3,200, I’m required to surrender to the Bar Harbor Greed Education Camp run by the town council.”

He also called Councilor Matthew Hochman “vulgar and deplorable” for comments earlier this year which used an expletive with Charles Sidman’s name. In multiple venues since then, Hochman has apologized for his profanity. He apologized again Tuesday night.

Peacock reiterated her statements at the meeting’s beginning that personal attacks were not helpful and that they were gathered to discuss potential policy changes.

Hochman was also defended by Valerie King, a local server who moved here in second grade. King called him “unpretentious and kind.”

Carol Chappell, chair of the Warrant Committee’s sub-committee on government, spoke about various ways to initiate change in the town’s land use ordinance. Her worry was that if Chapter 50 prevails, only the Town Council would be able to change to it.

Ellen Dohmen said she was tremendously impressed by how many cared about the issue and attended. She also said that cruise ships are not the only factor in troubles that the town faces.

”I’m under no illusions that the repeal of the LUO will not be placed on the ballot,” said Charles Sidman. He’s okay with that, he said, because he thinks the citizen should have the final say. “I think that Chapter 50 is an unmitigated disaster.” He believes the citizens will reject the elimination of the LUO ordinance in November. Prior to the meeting, he sent a sheet of his arguments to members of the press and also provided them as a hand-out to attendees in the overflowing Town Council chambers.

Those who were more supportive of the compromise said that it gives the town protection because of multiple parties (cruise lines, tenders, pier owners) filing releases of claims. A release of claims is essentially when one party gives up the right to sue another. This usually happens in exchange for something else.

Many small business owners and workers who spoke said that they worried for their employees with the current 1,000 system. While 3,200 wasn’t ideal for them, they said they understood the need for compromise and that a steady number made it easier to negotiate and for their businesses to survive.

“Tonight I’m speaking about reality. And the reality is Bar Harbor is developing a reputation as unfriendly and unwelcoming,” Darrin Stavnesli said. “When you make your town unwelcoming to one group of people, it affects your image across the board….Now that is our image, we are the beautiful, hateful Coastal Maine town.”

Cruisers have to hide that they are cruisers as they go through town, he said.

“Real Mainers welcome everyone. We don’t cherrypick who we think is good or bad.” Both tracks, he said, are designed to sink cruise ship visits and appease people who won’t be here when the full negative effects are realized. “Bar Harbor is not an HOA. It is not a gated senior retirement village.”

Bo Jennings, director of operations at Side Street properties, said that at the current 1,000-daily disembarkation level, he will not be able to hire four employees back next year. Four people will lose their jobs.

Greg Savage said this week he had one $363 lunch day when cruise ships weren’t in. The next day, his restaurant made $2,000 for lunch “That’s an impact on me and my family. That’s an impact on everyone else here too. There’s a happy medium here someplace. I hope you find it.”

One young man who serves ice cream said that he earned $2,000 last summer. This year he’s only earned $750. “It’s not good for the community or businesses around.”

Often, Ruth Eveland said, the town’s land use ordinance is iterative, changes are made and it gets better over time. The concept, she said, has merit, but is not manageable because of how it was placed in the town’s land use ordinance. The purpose of that ordinance, she said, is different than what the town is trying to achieve. It’s focused on buildings, not on the management of people.

“Either it will pass or it won’t,” she said. She felt it was appropriate for the town as a whole to have a second say.

Tom Testa, whose family has had a business in Bar Harbor for 90 years agreed. He, and others, talked about shortened seasons, the struggles for businesses to stay open in slow months, and cited the 2021 town survey about cruise ships where people said that they did not want to ban cruise ships but reduce the numbers of visits, he said. He asked what people were voting for with the 1,000 caps: a ban or a reduction?

Others, like King, said they were a bit emotional.

“I’m here to speak for the servers and all the other workers in town,” King said. Servers, she said, aren’t making as much money now that the caps have begun. Her son lost a shift at his work. Now, she said, they have to try to figure out how to pay for things like insurance.

It wasn’t just her fears about her income and her son’s income that made her emotional, but the way some people were treating others.

“This town—what is happening here—is not okay,” King said. “All these people speaking that are losing nothing losing cruise ships. We who don’t have time to spend hours at these meetings listening to people rant and insult people we love, we should have a say, too. And that’s in voting.” She appealed for the councilors to move the orders forward.

COUNCIL COMMENTS

During the councilors’ comments on the items, Hochman again apologized to Sidman for his previous language before moving onto policy.

“We’ve never said that Chapter 50 was going to require a citizen vote,” he said, but to change the caps within that Chapter would require a citizen vote.

Councilor Earl Brechlin said the town is two years past the cruise ship disembarkation vote and knows now more than it did two years ago. Chapter 50 is not APPLL’s plan, or Ocean Properties’, or the cruise ship industry’s, or Sidman’s plan, he stressed.

“We need a way forward out of this mess,” he said.

The town’s court victories, he said, aren’t even the beginning of the litigation.

Councilor Kyle Shank said that the change lets the town protect what it’s won, and that’s the lens that he looks at the Chapter 50 changes. That requires negotiated compromise, he said. “That’s hard and that’s on us to sell.”

Through Chapter 50, he said, the town gets a release of claims and that allows the town to minimize the risk of winning the legal battles but losing the war. The compromise for that is hard.

“And that’s on us to sell,” he said.

Councilor Joe Minutolo said that negotiations with cruise lines, pier owners, and others were tough. There were days of back and forth with mediators and lawyers, sitting in front of computers, in waiting rooms.

“There are so many portions of this document that gives this town some power,” he said that allows it to have changes going forward. “It’s a balancing act.”

Councilor Maya Caines said that though frustrated with the higher 3,200 number, “I truly believe that from a policy perspective this is the best possible.”

Friedmann said, “This is one of the hardest issues that I’ve ever had to deal with.”

He said it was the best council he’s dealt with and all members were of high integrity. When they began working on Chapter 50, he said, “we were looking for a way to get out of the courtroom.”

There have been eight Council meetings in August and countless hours in court, he said, but though supportive of the process, he was stunned by the 3,200 cap. He also feels like the annual caps are too high. He voted against multiple orders presented.

THE CONTRACTS INVOLVED IN CHAPTER 50

Town Attorney Stephen Wagner has submitted a memorandum to the town manager yesterday, but also read it into the meeting’s record. He said that enough contracts have been received from cruise lines to reduce the town’s litigation risks.

The town also demanded releases from the four tender entities. They have also received limitation of claims from those entities and the Penobscot Bay Pilots. APPLL’s position remains unknown. Wagner said that its legal counsel has moved to recommend that individual members release limitation of claims. BHPS LLC and Golden Anchors LLC sent the town its contracts and limitation of claims August 27, he said.

FEDERAL LAWSUIT APPEAL UPDATE

At the same time, a federal February 2024 decision allowing the current 1,000-a-day limits is being appealed in court by the Association to Preserve and Protect Local Livelihoods as well as a pilots’ association and the pier owners.

In that United States Court of Appeals for the First Circuit case, the court has granted amicus status to Cruise Lines International Association (CLIA) and Pioneer Public Interest Law Center in the APPLL et al vs. Town of Bar Harbor appeal.

According to a town press release, issued prior to the Town Council’s August 27 meeting, “Amicus status grants an individual or organization, not a party to the case, the right to assist the court by offering information, expertise, or insight that has a bearing on the issues in the case.”

The briefs were filed on August 23.

Cruise Lines International Association (CLIA) is the world’s largest cruise industry trade association and argues, “But the ordinance at issue here severely restricts passengers’ ability to enter Bar Harbor by ‘establish[ing] a disembarkation cap of 1,000 persons per day.’ The ordinance thereby regulates conduct and passenger choices far beyond the town’s boundaries. This ordinance is the first of its kind. It is not a maritime navigational regulation intended to promote safe passage through Bar Harbor waters. Nor is it a regulation intended to ensure the seaworthiness of vessels. Rather, it is a land-use ordinance that targets purely private uses of private property, threatening the owners of private waterfront piers with a ‘$100 minimum penalty per excess unauthorized disembarkation.’”

CLIA’s attorneys also argued that Bar Harbor’s current disembarkation caps do not synch with federal Commerce and Supremacy Clauses.

"Moreover, if Bar Harbor can pass a land-use ordinance restricting cruise-ship disembarkation, so too can every other port along the eastern seaboard, effectively imperiling interstate transportation by large vessels,” they write.

“Although the ordinance’s purported purpose is to reduce waterfront congestion and promote public safety, the district court found that the primary sponsor of the ordinance ‘expressed a preference for smaller cruise ships because the passengers on smaller cruise ships tend to be more well-to-do,’ and, conversely, expressed ‘a dislike of . . . the larger cruise ships.’ Additionally, the district court found that the ordinance would have the intended effect of reducing ‘passenger visitation volume by a significant percentage, likely north of 80 and possibly as high as 90 percent,’” they write.

In its brief, Pioneer Public Interest writes, “The Town of Bar Harbor’s Ordinance (“the ordinance”), which limits the number of people allowed to disembark from a cruise ship into Bar Harbor each day to 1,000, is an unconstitutional infringement of the right to travel. If it stands, it will have an enormous negative effect on cruise ship travel and the economic benefits the industry brings to ports in New England and other communities.”

“Pioneer Public Interest Law Center (PPILC) is a nonprofit, nonpartisan legal research and litigation entity,” its website reads. Brackett Denniston is its board chair. Retired U.S. District Judge Frank J. Bailey is its president

Sidman who was a defendant intervenor in that lawsuit is also currently suing the town because he believes the town did not enforce the rules properly or quickly enough. That is another lawsuit, which is not federal.

In an August 15 Bangor Daily News article, Sidman told Bill Trotter, “They have resisted from the beginning,” Sidman said of the seven members of the council. “These people think they’re rulers, not public servants.”

In 2019 Sidman was integral to a town vote that prevented Bar Harbor from developing cruise ship berthing piers. That means that cruise ships visiting have to have passengers tendering in. The vote was 493-384 in favor. At the time, the town was discussing cruise ship berthing at the town’s property, which currently is leased to the CAT ferry. It is also slated to eventually become a marina.

Sidman was part of another movement requiring voting members of all Bar Harbor committees to be Bar Harbor residents. Currently, there are people who are not Bar Harbor residents on the Parks and Recreation Committee and the Committee on Aging and the Task Force on the Climate Emergency.