BDN report: Council moderator doubted voters understood cruise ship ordinance
Biased COA professor refused to allow dialog at 'informational' meeting
BAR HARBOR, Aug. 25, 2024 - How did Jamie McKown come to moderate the public “informational” session last Thursday, held ostensibly to shed more light on the confusing Town Council proposal to replace the current citizen-initiated cap of 1,000 daily cruise ship visitors with its own plan of more passengers?
Unlike its brethren of prominent non-profits on MDI - Jackson Labs and MDI Bio Labs - the College of the Atlantic has not shied away from actively participating in the political scrum over cruise ships.
With the lawsuit led by Ocean Properties against the town in front of a federal judge last September, former COA President Darron Collins penned a full-throated letter of appreciation for Eben Salvatore, local OP steward and the lawsuit’s lead plaintiff. (The QSJ recently wrote that former COA executive Millard Dority, who has since retired and is now Planning Board chair, once tried to rally the COA community to support proposed piers at the town-owned terminal to berth more cruise ships.)
Now comes COA professor McKown to carry more water for the Town Council. At the session Thursday night, McKown shut down any possibility for dialog by allowing only the town’s retinue of staff, lawyer and two councilors to speak.
McKown opened his introduction by aping a council assertion as fact - that enforcement of the current 1,000 daily cap of passenger visitation under the land-use ordinance adopted by citizens was “tricky.”
The only persons who have made that assertion are the councilors, town attorney, town manager and harbor master.
Add McKown to that list.
What McKown did not disclose Thursday night was that he recently trafficked in another canard started by some councilors that voters didn’t know what they were voting on Nov. 8, 2022 when the 1,000-passenger cap was approved.
In an article entitled, “How Bar Harbor’s raging cruise ship debate shaped local elections,” reporter Bill Trotter of the Bangor Daily News on June 13 quoted McKown as saying it is “probable” that many voters supported the 2022 citizens’ referendum in spirit without fully grasping the details of what it meant.
“He also said voters often are subjected to misleading or incomplete information posted on social media and, given the limitations of how thorough referendum questions can be when printed on ballots,” Trotter wrote.
So here is a reprint of Article 3 of the warrant approved on Nov. 8, 2022 by a vote of 1,780 to 1,273:
Then Town Manager Kevin Sutherland even used taxpayer money to publicly campaign against Article 3 with flyers like this, designed by Cruise Maine:
Article 3 was one of the most vetted and argued ordinance amendments in the history of the town. The vote count speaks for itself - 3,053, with 58 percent in favor of adoption.
McKown is an academic, not a politician. So I asked him by email to cite the data, research or any scholarship to support his claim that “many voters” didn’t fully grasp the details of the Nov. 8, 2022 question.
He has not replied. I hope he does. I also wanted to ask him how an academic could default to hearsay when asked for authoritative facts.
McKown was perfect for what the councilors needed. He came with all the trimmings - a publicly presentable academic with like-minded views. I asked Town Manager James Smith whether McKown’s publicly stated bias in the BDN was a consideration in his selection to moderate the session. Smith has yet to reply.
McKown did his job well. He did not allow any give-and-take between citizens and council.
(See below video of Town Clerk Liz Graves offering to write down nonagenarian Jake Jagel’s question on an index card after the moderator refused to let him speak, while town attorney Stephen Wagner droned on in the background. Jagel eventually went back to his seat. (Double click to activate the video).
The session was sparsely attended with only about 30 persons in the auditorium at the high school. Several left after they saw McKown would not allow any comments or follow-up questions. “It was not a productive use of my time,” stated one who left. Others did not attend because they have given up on what they characterize as a tone-deaf council.
One attendee called to say my questioning of McKown was “bullying.” The caller said even though he believed cruise ships are “vile,” he found the session useful.
Nonetheless, the town attorney did respond to one of my questions when he said he was negotiating with PortCall to release future reservations. More on that later.
Here is a point-by-point analysis of the latest cruise ship management plan to be presented to voters at the council meeting Tuesday night. It is the first of three parts, Part 2 and 3 will be published Monday and Tuesday.
(Town attorney Stephen Wagner was still tinkering with the language, so it’s anyone’s guess when the final version will be completed.)
Why the current ordinance is not that difficult to enforce:
The council has manufactured this foundational issue to support its proposed changes, that the current citizens ordinance is legally and practically unmanageable.
Exhibit 1: Council chair Val Peacock’s repeated reference to “previous use” of disembarkation allowed by the town as a liability in the event of a lawsuit claiming such a use is “grandfathered.”
This council is easily spooked by lawyers. It was ready to impose Peacock’s proposed plan in 2022 for cruise ship limits when a maritime lawyer warned that the Constitution respecting international maritime laws trumped ‘home rule.”
(Lawyers for Ocean Properties later parroted that opinion in public hearings.)
A wobbly council then followed the lead of Town Manager Kevin Sutherland to develop letters of agreement with cruise lines to limit visitation to 65,000 passengers a month.
At the same time, citizen Charles Sidman flanked the council with a petition drive for a 1,000 daily passenger limit using the land-use ordinance to regulate visitors as they disembark.
Sidman won on Nov. 8, 2022 overwhelmingly, 1780-1273. That’s a 507 voter differential, or 58 percent of the vote.
(When Professor McKown gave his interview to the BDN, how confident was he that more than 507 voters didn’t know what they were voting for?)
The Association to Preserve and Protect Local Livelihoods - businesses that rely heavily on cruise ship visitation - sued in late December 2022 in federal court citing the maritime law as a principal argument.
It took 14 months of hearings and a trial for U.S. District Judge Lance Walker to issue his ruling on Feb. 29, 2024 in which he obliterated the maritime law argument and gave a solid endorsement of Maine municipalities’ right to home rule.
One week later, a frazzled council issued a “press release” on March 6, 2024, stating its intent to delay enforcement of the ordinance until it developed another plan.
After the maritime law argument fizzled, the council needed another doppelganger, and quickly.
Enter “pre-existing, grandfathered uses” as the new boogeyman du jour.
Pre-existing use is a legitimate protection of businesses with a long history of operation, perhaps through generations.
Say your family had a chicken farm for 100 years and suddenly the town rezones your district to residential. You would have a rightful claim of pre-existing use.
But that is only if the new zoning is a “hard prohibition” against grandfathered use, legal experts say.
In the case of Ocean Properties, no one is saying OP may not continue to tender passengers to shore. The town is only saying we are implementing new regulations to ensure you are not a “public nuisance,” lawyers say.
Just as the town invoked paid parking and new regulations on vacation rentals, no one is saying you may not conduct your business as “grandfathered.” You only have to obey the regulations in the public’s interest in a new era.
Legal experts say this is an easy case.
If Ocean Properties wishes to risk its monopoly of tendering passengers in Bar Harbor, many residents who spoke at the Planning Board hearing Aug. 6 - the only one so far with a give-and-take with the public - said, “bring it on.”
The company was served a notice of violation by Code Enforcement Officer Angela Chamberlain on Aug. 5 to apply for a permit under the current LUO ordinance to operate its passenger disembarkation business at 55 West Street. it has 30 days to reply.
Come Sept. 5, we will see if the council has the spine to seek a cease and desist order against Ocean Properties.
As for the other sections of the ordinance, which the council now claims to be enforcing, no one has seen any signs of enforcement - such as fining Ocean Properties $100 per violation of the 1,000-passenger cap. The town continues to leave millions on the table.
Counting the number of passengers is not rocket science:
The town may enforce a complicated web of short-term rentals, but it can’t count the number of humans who come on shore from a cruise ship? This defies credulity. And it was disappointing to see Chris Wharff, the harbor master who has handled himself with enormous professionalism throughout this political imbroglio, succumb to the pressure by listing reasons why it’s difficult to count the number of passengers.
Council member Earl Brechlin stepped in to remind everyone that crew members are exempt from the 1,000 cap as if that is a major impediment to enforcement.
Charles Sidman’s lawyers already stipulated that the crew members would not count toward the 1,000-passenger cap before Judge Walker stated so.
So say a ship with 1,000 passengers disembarks. Using the industry standard of one crew member for every three passengers, that ship could disembark 1,333 humans. And Sidman has already stipulated to that. So why is Brechlin presenting this as an issue except to grand stand or, worse, to create a false narrative like Donald Trump.
Brechlin wasn’t finished.
When McKown cited a question from one of the index cards on why the rush to repeal the LUO cap, Brechlin said one of the reasons was that a Presidential election year “was a perfect time for this referendum because it will test local democracy at its highest point where votes will increase by an order of magnitude.”
If you take the 2022 vote count of 3,053 on Article 3 as a base, an order of magnitude would be 30,530 votes. As of the 2020 census, Bar Harbor’s population is 5,089.
In the 2020 Presidential election, 3,608 votes were cast in Bar Harbor.
I would cut Brechlin some slack, but this is a guy who made his living as an editor and writer. In previous meetings, he called the 1,000-passenger cap a ban.
Everything this council says is just a half-step away from out-right prevarication.
Peacock reminded folks that the town defended the 1,000 cap in federal court and won a decisive ruling.
But she didn’t tell the whole story. I was in my full muckraking mojo then and remember well the actual events.
Sidman did not trust that the town would defend the citizens ordinance against APPLL vigorously, so he had his own lawyers sue for intervenor status. The town and APPLL joined forces to oppose him.
On Feb. 28, 2023, Judge Walker issued a ruling in favor of Sidman and wrote his famous rebuke of the Town Council.
“In this case I find that the request for intervention is appropriate given the Town’s history of boosterism for the cruise ship industry. Indeed, there is a strong showing in the record so far adduced that the Town has long given over to one or more agents of the Walsh family enterprises (i.e., most of the nominal plaintiffs) what appears (upon first impression) to be carte blanche in matters of Bar Harbor’s informal and voluntary cruise ship policy.
“When added to the fact of the Town’s opposition to the ordinance there arises an idiosyncratic factual setting that supports a commonsense finding in favor of intervention.”
Walker then ordered all parties to mediation sessions in front of a federal magistrate, John C. Nivison. It was then, Sidman said, that the town was ready to cave into APPLL’s demands.
Only at his lawyer’s intervention, Sidman said, did the case then go to trial which was won by him and the town.
And that’s the whole story.
Thank you, Lincoln. I certainly understood what I was voting for. Its not complicated.
This format was advertised as a Q &A only giving 2 days notice. I spent much of those two days writing my question and was shocked to find out we were all muzzled and the moderator was allowed to read all the questions by himself and then combine, edit and manipulate the questions in his words before asking BRECHLIN , SMITH, WARFF and highly paid Attorney WAGNER. only questions scribbled down on index paper and collected by our marvelous Town Clerk who would hurry up and down the aisles to collect them during the meeting. No citizens were allowed to ask their question. No one was allowed to talk. It was the weirdest Q&A format I have ever seen. A number of people blurted out their disapproval to no avail. The COA moderator took my comment that I was expecting to personally read and ignored it. I hurriedly filled out 5 questions on 5 index cards and our Town Clerk scurried up and down the aisle to bring each one to the moderator. Only one was asked after the moderator threw half of it away by editing it. That sent me over the edge. I stood up and cried out my question was edited. To no avail.
The most important question I had was .
Who specifically had the idea to come up with huge ships of 3200?
allowed to talk.