Bar Harbor Town Council Waits For Legal Consult Before Deciding to Put the Citizens Initiative on November Warrant

BAR HARBOR – There has been a pause in the process of potentially putting a citizen petition that would reduce the daily amount of cruise ship passengers entering Bar Harbor on the town’s November 8 warrant.

Town Councilors could have put the petition on the warrant at its July 19 meeting, but chose to delay that decision until they consulted with attorneys to verify that the warrant itself is constitutional. According to town code, the council must make that decision about bringing the petitions to the voters by August 16.

Councilor Jill Goldthwait said, “It’s a lot of information to digest from our own community and now lawyers have entered the picture and I’m not one.” She said that it’s important to take the time for that consultation prior to moving the ordinance forward onto the warrant. “I think it’s important that we wait and hear from our own town attorney before we make a decision.”

Council Chair Valerie Peacock said that she appreciated hearing from residents with differing opinions and thanked them for putting in the time on the warm evening to be a part of the council’s process.

The public hearing for the cruise ship petition organized by Charlie Sidman and signed by many Bar Harbor residents occurred Tuesday night at the Bar Harbor Town Council meeting at the Bar Harbor Municipal Building, which ran for approximately three and a half hours. The public meeting in the hot council chambers had people passing out water and lasted approximately one third of the total meeting.

The Bar Harbor Town Council heard from multiple citizens and lawyers at its July 19 meeting. An attorney that represents Ocean Properties said that the limitation of cruise ship disembarkations creates multiple legal questions, stating that what the petition is doing is delving into federal maritime commerce. He also cited the U.S. Constitution’s privileges and immunities clause, 14th Amendment due process clause, and the commerce clause. Ocean Properties currently handles the disembarkation of many passengers at its properties on Frenchman Bay.

“The ordinance is flatly unconstitutional,” said Tim Woodcock, a Bangor attorney representing an unspecified local business. “It would be vacated and ruled invalid under the strength of the dormant commerce clause.” This clause, he said, has force in its own right.

The clause is legal doctrine that stems from the U.S. Constitution’s commerce clause and is often used to stop state legislation that is perceived to unduly burden or discriminate against international or interstate commerce.

The Bar Harbor petition calls for limiting the number of disembarkations of cruise ship passengers to 1,000 a day. It also creates a new set of procedures for permits that property owners in town can be issued to accept disembarking passengers. The new system would require the town’s harbor master to create a reservation process for transporting passengers off the cruise ships and a counting mechanism. Then the town’s code enforcement office would have to ensure compliance. Lack of compliance would be $100 per passenger who wasn’t authorized to disembark. The changes would go into effect after March 17, 2022, which means it would be a retroactive change.

Citizens spoke in favor and against the petition during the public meeting. Sidman referenced the town government’s committees and boards talk and action about dealing with cruise ships, saying, “I personally and I believe many people regard these attempts as too little and too late.”

He said that he hoped that the initiative if passed would establish that system of application and permits and enforce it with transparency for the citizens. He added that the council could establish and prioritize cruise ship bookings, possibly prioritizing smaller and more ecologically responsible cruise ships.

If the council moves the petition to the warrant, then the changes laid out in the ordinance will be approved or rejected by Bar Harbor voters in November. Many of those in the packed council chambers spoke for three minutes at a time, expressing opinions in favor and against the initiative.

Frenchman Bay, Bar Harbor. Photo by Carrie Jones

Darrin Stavnesli, a member of the Wəlastəkwewiyik or Maliseet nation, who works on the island, spoke against the cruise ship initiative saying that many passengers were more respectful than many other visitors and added that many people’s attitude is proprietary and exclusionary. “Stop telling the kids to get off your lawn.”

Lenny DeMuro, a Bar Harbor resident since he was 13 who is now 77 and has a cruise ship job asked a litany of questions about the cruise ships. “The cruise ships have tried to do what we asked them to do,” he said, saying that cruise ships come more often in spring and fall after that was requested.

Kevin DesVeaux, the owner of the West Street Café said that cruise ships are 30 to 35 percent of his restaurant business, and without the success of that business, his other businesses would not stay afloat. He employs 60 people, he said. Kristi Bond, business owner, echoed DesVeaux’s thoughts and said that the initiative was not a compromise. Many local business owners agreed during their three-minute statements to the council.

Speaking for the Bar Harbor Chamber of Commerce’s Board of Directors, Chamber, Executive Director Alf Anderson said the organization is also against the initiative, explaining that the chamber supports the negotiation process that the town has entered into with the cruise industry and hopes that it as well as operational improvements and comprises between the town and the cruise ship industry will enhance visitors’ experiences, but is against this initiative, saying it would likely raise taxes and inhibit many businesses from operating successfully. Anderson said that the organization is also worried that the enforcement of the initiative may be illegal and inherently difficult for the town.

Doris Plumber, a Bar Harbor resident said she was quite concerned about the potential ecological and environmental risks of cruise ships.

Stewart Brecher, a Bar Harbor resident, also spoke to the environment and said, “The town has failed to deal with the carrying capacity of the sidewalks, the roads, the parking,” and by doing those improvements piecemeal, it doesn’t help as much. He spoke to determining what kind of community Bar Harbor wants. “ I feel there’s a real imbalance and we have to take a step back and figure out what we want as a community.”