Attorney Pessoa: The 'smoking gun' as to what's afoot - last graph in Chapter 50

Another example of town council trading away voter rights

ARTICLE VIII Amendments of this Chapter § 50-18. This Chapter may be amended consistent with other Town ordinances, except that any amendments inconsistent with a cruise line contract pursuant to Articles III and V or coordination contract pursuant to 50-15B then in force shall not apply to the parties to such contracts unless and until such contracts expire or are terminated in accordance with their terms.

BAR HARBOR, Aug. 18, 2024 - Ignacio Pessoa, the former city attorney for Alexandria, VA., has spotted another giveaway (see above) to cruise lines in the proposed Town Council ordinance to replace the citizens approved ordinance to regulate cruise ship visitation.

Pessoa called out the above in a comment to the QSJ only six hours ago. I thought it was important enough to highlight it.

“So the final draft of the proposed ordinance abdicates the town's future exercise of its regulatory authority (including by voters) to amend the ordinance or reduce the visitor cap for the five-year period of the anticipated contracts with the cruise lines or disembarkation facilities,” Pessoa wrote.

“There is a real question as to whether the current council has the legal authority to so bind a future council or the voters; most courts would say no. And this provision leaves the legislation subject to a likely successful challenge as an unlawful attempt to contract away the town's regulatory authority.

“The more prudent course would be expressly to make such contracts subject to future amendments of the ordinance by the council or voters, so as to remove these concerns.”

Yesterday I published an article in which three legal experts stated that the Town Council’s proposed contracts with cruise lines heavily favored the industry at the expense of voter rights. Pessoa was one of the three.

Moreover, Council Chair Val Peacock has stated that one of her primary goals was to reduce litigation against the town such as the lawsuit brought by businesses which rely on cruise ship passenger revenue. The council has faced stiff criticism for trading away the quality of life for most residents over its priority to reduce lawsuits.

The QSJ obtained all the legal invoices for Fiscal Year 2024, which ended June 30, through a Freedom of Access Act request and reported Aug. 9 that most of the growth of the legal costs have come from town staff’s overuse of the town attorney’s services rather than from litigation.

(The QSJ paid $200 for copies of the invoices. BH is the only MDI town which levies such a fee. Other towns are happy to wave the fees when I ask for public documents. The practice in BH started under previous town managers Cornell Knight and Kevin Sutherland. The policy has continued under current Town Manager James Smith, who also extended the practice of blocking the QSJ from receiving town press releases which was imposed by Knight after I reported his previous employment at Eaton Peabody the day he was announced as the town’s interim manager in 2023. Eaton Peabody is the law firm representing businesses suing the town).

The council decided in March not to implement the citizens cap of 1,000-passengers disembarkation a day, after U.S. District Judge Lance Walker upheld the town’s “home rule” authority on Feb. 29.

In June, the council released Chapter 52, a stop gap measure to only enforce the permitting of properties which disembark passengers. Ocean Properties, which operates the only dock for cruise lines to disembark passengers, refused to comply.

The council is proposing to replace both the 1,000-passenger cap ordinance and Chapter 52 with its own ordinance, Chapter 50, which would not reside in the land-use ordinance where all changes are subject to a citizens vote. Chapter 50 may be amended by the council.

As Pessoa noted above, the contracts with cruise lines and Chapter 50 are intertwined, so that elements of the contract may be bolstered by sections in the ordinance, just as Pessoa spotted in the above section.

You may find Chapter 50 and the cruise line contract on this page on town’s website.

Beware that there are several empty pages separating the sections so make sure you scroll all the way down.

Feel free to forward comments.