Ex-appeals chair: Previous ship permits do not prevent town from limiting passengers

Another expert questions Bar Harbor council's claims

BAR HARBOR, Sept. 28, 2024 - Fear is the foundational tactic of the Town Council as it seeks to win citizen approval for its proposed Chapter 50 of the town code to repeal the current 1,000-a-day passenger visitation cap and replace it with potentially four times that number.

The only way to get the town out of its “Groundhog Day” nightmare is to capitulate to the cruise ship industry. Otherwise, the town faces expensive litigation as far as the Maine horizon in late June.

Council Chair Val Peacock is the high priestess of this dark manifesto, the latest being that the town had set a legal precedent by permitting ships of various sizes for years and thus “pre-existing non-conformity” prevents the town from limiting the number of disembarking passengers.

(Did Peacock compromise the town’s defense on that point? A paid PR flak for the industry couldn’t have represented the cruise ship industry better than Peacock.)

Not so, says one of the town’s leading authority on its Land-Use Ordinance.

Ellen Dohmen, who served the town for 25 years as a member of its resign review committee, Planning Board and the last 15 as chair of the Appeals Board, said any such claim “will not stand up in court.” As chair of the appeals board, she was the town’s senior appellate official.

On Aug. 6, the council unanimously approved a proclamation thanking Dohmen for her service and took note of her expertise in the LUO. Only the code enforcement officer has a deeper knowledge.

At that meeting, Peacock said she “learned a lot” from Dohmen, especially in matters pertaining to the LUO.

Apparently she didn’t learn enough.

The QSJ called Dohmen to seek clarity after her remarks (1:23:20 into the meeting as captured on video) left some with the impression that the town was legally handcuffed.

On the contrary, Dohmen said, no one is taking away cruise ship disembarkation as a legal “use.” The town is only setting new parameters around that use, just as it has in other amendments to the LUO.

“So we can say you used to be able to disembark an unlimited number of people, and now you can only disembark 1,000 a day. That's legal. We're not taking away your non- conformity,” Dohmen said.

At the Aug. 6 meeting, Dohmen also challenged the council’s representation that litigation was the only course of action the town may take when someone refuses to comply with a notice of a violation of the LUO.

The Town Council may seek other solutions before going to court, she said.

Unencumbered in her new role as a private citizen, she agreed to speak out “on the record.” She also urged the council to focus on pollution as a key cruise ship issue.

It was another example of how the council’s pursuit of Chapter 50 does not pass the straight face test as more voices of authority are openly challenging its claims.

Chapter 50 is the council’s proposal to repeal the 2022 citizens ordinance of 1,000 daily passengers allowed to disembark on Bar Harbor’s streets in exchange for five-year contracts (which may be easily renewed into perpetuity) with cruise lines and Ocean Properties, which operates the Golden Anchor dock.

In hearings and other “public” meetings, the council has refused to answer rudimentary questions, like that from Peter Scott, a contracts expert, on “why five years? Why not two or three years?”

In August, the QSJ quoted Scott and two other legal experts questioning Chapter 50.

“It's clear these were written with the close cooperation of the affected industries. As a whole the documents struck me as so one-sided that I have to wonder who is representing the interests of Bar Harbor’s voters?” Scott wrote.

The council, with its new town manager, has propped up cost of litigation as a primary reason to submit to the cruise ship industry. But the QSJ obtained all the legal invoices from FY24 through a Freedom of Access Act request and they showed actual cruise ship litigation cost to be less than half of the town’s $386,053 legal tab last year. (The QSJ asked Smith whether he has implemented safeguards so that individual department may not call the town attorney without his approval. He did not reply.)

Like everything else, the council layered another healthy dose of exaggeration in its extraordinary campaign to flog Chapter 50, including hosting a “QandA” session with a hand-picked moderator who previously asserted that voters didn’t know what they were voting for when they approved the 1,000-passenger cap in 2022. He then proceeded to shut down all comments and questions except those from town lawyers and staff.

In another FOAA request, the QSJ was able to obtain financial records which showed the town paid that moderator, Jamie McKown, $5,000, as a retainer for his services. Did McKown do anything more than prepare for a “QandA” which lasted two hours?

Then the town brought in a new Rudman Winchell lawyer to “train” town boards and committees during which he suggested strongly that some conflicts of interest were not in their purview.

The result was that the lead plaintiff in the APPLL lawsuit against the town, a senior employee of Ocean Properties, continued with his unfettered influence of the warrant committee resulting in its overwhelming approval of Chapter 50.

But even that would not be enough for OPL.

On Sept. 11, it sued the town once again to challenge the passenger cap after it was served a notice of violation on Aug. 5 by the code enforcement officer.

OPL now has taken one small step toward Chapter 50 by signing a contract agreeing to its terms, but took two steps back with not one but two lawsuits against the town.

The latest lawsuit repeated many of the claims in a previous lawsuit from APPLL (Association to Preserve and Protect local Livelihoods) in federal court which was ruled in favor of the town’s right to “home-rule” to enact such protection of the quality of life for its citizens.

The new lawsuit did call out that the town had permitted cruise ships to disembark since 2001.

Who can blame Ocean Properties for hedging its bet against this council and town manager?

If the council’s “Chapter 50” proposal goes down in flames in November, as a similar proposal did two years ago, OP wanted to have more than just a faded Val Peacock promise in its back pocket.

But it invited a new question. Is Rudman Winchell the best firm to represent the town after it convinced Peacock and the council that “legal non-conformity” was a serious liability for the town?

Just as before, when citizen petitioner Charles Sidman sought and received an intervenor status in federal court in which he expressed no confidence Rudman Winchell would defend the town vigorously, Sidman said he would seek intervenor status in this case as well.

Sidman warned Peacock and the council that their “two-track” strategy to juggle implementation of the 1,000-passenger cap while at the same time working to repeal it would only result in more lawsuits.

Council plan would ensure mega passenger days

Another council tactic in its playbook is of a more serious nature - its complete disavowal of its stated commitment to effect a “meaningful reduction” in passenger visitation.

The year that broke the back for many residents who felt cruise ships overstayed their welcome was 2019, when the town hosted 272,578 passengers, according to the harbormaster’s records.

That season, protesting emails flooded the inboxes of the Town Council.

On heavy visitation days the village felt like it was overtaken by passengers on every conceivable inch of its downtown.

In July that year, an industry study concluded that “even on a light cruise day with fewer than 2000 PAX (persons approximately), the area can neither contain nor ensure the safety of passengers” in reference to the bottleneck on West Street.

The study was from the industry’s major trade group, Cruise Lines International Association. As Peacock stated later, ”Bar Harbor was not built for cruise ships.”

The study recommended the town take action to mitigate the disembarkation mess on West Street. Most of the recommendations were never implemented.

The council’s proposed Chapter 50 ordinance on the November ballot to repeal the citizens cap actually codifies those heavy cruise ship days for half of September and October for the next five years, with easily achievable renewals for cruise lines into perpetuity.

The council prefers to talk about its monthly caps for those months of 55,000 and the seasonal cap of 200,000 and the 10 “free ship days” in September and October.

In October 2019, there were seven days without ships. But all anyone can remember were the 13 days of ships exceeding 3,000 passengers, creating long lines at the pharmacy, hospital emergency room and tying up other basic services.

Chapter 50 ensures a replay of that each year.

(The council’s proposed cap of 3,200 a day does not include crew members which average about a third of passengers industry-wide nor American flag carriers with fewer than 200 passengers.)

Councilor Joe Minutolo, back when he was an honest broker, cited the CLIA study on Aug. 16, 2022 as one reason why he could not support then Town Manager Kevin Sutherland’s proposal for agreements with cruise lines for daily passenger disembarkation of 4,000 passengers which included the harbormaster’s discretionary approval of 200 passengers.

You may tune into Minutolo’s 2022 remarks on Town Hall Streams starting at Hour 1:44:20.

(The current Town Council initiative is a replay of the failed 2022 effort - binding agreements with cruise lines, except this is for five years and voters are marginalized because they no longer have the power to challenge the council as they do under the land-use ordinance. Sutherland was let go only one month after his first anniversary. Smith’s Chapter 50 proposal is Sutherland’s proposal on steroids).

That night in August 2022, Minutolo said,

“I just wonder if the reductions are enough, and my reasoning for that is going through some of the reports. They said on a day with more than 2000 PAX it's basically very challenging in this town.

“And what we're offering right here is 3,800 as the PAX (persons approximately) almost double what is really deemed as what we've heard from our police chief and other staff that when you get over 2000 people, it gets incredibly challenging.”

Minutolo went on.

He cited the 2021 Pan Atlantic town-wide survey which asked: How would you improve management of cruise ship tourism?

“This was an open ended question,” Minutolo said. “The first three things said, reduce the overall number of ships, reduce the size of ships, and limit the number of ships per day.”

Minutolo and Gary Friedmann were the only councilors who voted voted against the cruise ship agreements in August 2022. The issue became moot when citizens overwhelmingly approved by referendum Nov. 8, 2022 the daily passenger cap at 1,000 passengers.

Now comes the Town Council in 2024 with essentially the same plan but with more codicils in favor of the industry which has some wondering who was the actual architect?

This time Minutolo is all in.

It was a brilliant political stroke by chair Peacock to co-opt Minutolo by adding him to the negotiating team with CLIA so that he had to own the outcome.

Minutolo, Peacock and Town Manager James Smith caved to virtually every demand by CLIA to essentially the same deal Sutherland struck, legal experts stated.

Minutolo, who declined to be interviewed for this article, talked about the grueling toll of the negotiation. Minutolo sounded like he was spent. This council may be spent as well. Is Chapter 50 is their escape route?

How many voters also are burned out and want to move on, even if it’s not in their best interest? We will find out on Nov. 5.

FOOTNOTE: One person who has stayed the course in his five-year battle against cruise ships is citizen petitioner Sidman, who recently released this exhaustive, 22-page report on the impact of cruise ships.

The reports is in five parts: Character & Community, Conflicts of Interest & Ethics, Overcrowding & congestion, Environmental Impact and Labor Practices.

It has an entire section on Ocean Properties, which owns 11 properties in Maine, or 13 percent of its North American portfolio (see map).

Sidman is hosting a public discussion of this report and other cruise ship topics Tuesday at 6 p.m. at the YWCA on Mount Desert Street.

Another article from a national publication,”The summer Europe turned on tourists,” - this one from the Washington Post on Sept. 21 - showed again how the Bar Harbor council is out of the mainstream of worldwide activism against over-tourism.

On Sept. 10, I published this article on how Greece was taxing cruise ships.

Is Maine’s Second District poised to support Trump again?

In 2016, Donald Trump became the first Republican to win Maine’s Second Congressional District since George H. W. Bush in 1988 and the first Republican to win an electoral vote from a New England state since George W. Bush won New Hampshire in 2000.

Maine and Nebraska are the only states which may split electoral votes.

Trump’s win in 2016 was the first time that such a split occurred after Maine began awarding electoral votes based on congressional districts in 1972. This was also the second time that a state split its Electoral College vote by congressional district since Nebraska in 2008.

Trump defeated Joe Biden in the district in 2020 by about 30,000 votes.

He and Kamala Harris have made no plans to campaign here, as opposed to Nebraska, an indication that they believe Trump will win here again.

Bar Harbor could give the Republicans a trifecta on Nov. 5 - victories by Trump, the Republican for Congress and the cruise ship industry.

CORRECTION: For the current fiscal year, Southwest Harbor has appropriated $105,000 for the two-town ambulance service and Tremont $75,000. The numbers I published in a previous article were several years old.