New cruise ship plan is reprise of Kevin Sutherland's generous 2022 giveaway

Passenger cap not 1st time town used land-use ordinance to regulate tourism excess

BAR HARBOR, Aug. 4, 2024 - Now it’s clear why it’s taken so long for the town manager to release the cruise ship management plan, which the Town Council wants to enact and to repeal the citizens’ passenger cap approved on Nov. 8, 2022.

The plan released Saturday is an unmade bed, with many sections marked in yellow and lots more work to do. (The relevant section starts on Page 89.)

But the cruise ship industry must be popping Champagne even with just this draft version.

It calls for maintaining the passenger count for this current season and exempts all ships with fewer than 200 passengers. That could approach 200,000 passengers a season. The highest passenger count for any single season was 290,000. See below:

That’s actually more generous than the plan former Town Manager Kevin Sutherland proffered before he was let go in 2023 and rejected soundly when citizens adopted their own version.

All this is conjecture, of course, because nothing has been codified. It still is subject to hearings and politics, lots of politics.

This is a rushed process, as the council is trying to accomplish in a few months what took almost a year for citizens to achieve in 2022.

Tuesday night the council will publicly review the proposed Chapter 50 for the first time.

Then on Wednesday the Planning Board will hold its pro forma hearing as required in the proposed repeal of the current cruise ship management code imbedded in the town’s land-use ordinance.

Town Manager James Smith is recommending the new plan - Chapter 50 - not be part of the LUO, which requires citizens vote on any changes, and have its own chapter in the town’s general ordinances which may be changed by the politically charged council.

That brought a stern rebuke from former Warrant Committee member Donna Karlson, who wrote:

“Chapter 50 power play is directly disenfranchising the voters’ will, the strategy to legally remove the Bar Harbor voters voice and vote by removing all cruise ship caps and permits, etc., from the Land Use Ordinance is shocking: this means a simple majority of the Town Council could raise the passenger cap to 6,000 per day if they so voted.

“I strongly urge the voters of Bar Harbor to closely scrutinize this anti-democratic power grab by the Town Council and Town Manager and their ‘base,’ Ocean Properties and the Chamber, to continue the mega cruise ship domination of Bar Harbor.

“Not too many years ago, I, my husband Art Greif ,and many citizens had to work our hearts out to prevent the building of the half-mile cruise ship pier that would allow the biggest cruise ships in the world to tie up two at a time.”

The late Art Greif was the activist lawyer who was a persistent and consistent thorn in the sides of the council and the cruise ship industry.

The council has argued that the citizens’ 1,000-passenger disembarkation cap using the land-use ordinance was too complicated to enforce.

But the plan released Saturday has a lot more moving parts and elements, including agreements with cruise lines, days without ships and exemptions (see above).

Another tourism management regulation - licensing of short-term vacation rental - also used the land-use ordinance and has produced better than expected results.

Voters passed the landmark vacation rental regulation on Nov. 2, 2021 requiring permits for all owner-occupied dwellings with a minimum stay of two nights and others with a minimum of four nights.

The amendment to the land-use ordinance also included a moratorium on future permits until the class of non owner-occupied rentals fall below 9 percent of the housing stock.

It was the single biggest achievement to combat the housing crisis under Planning Director Michele Gagnon, who was still relatively new in her job in 2021.

Since then, the non owner-occupied rentals (VR2) has declined from 522 permits in 2022 to 470 this year, an important material change because VR2s are seen as a much bigger contributor to the housing crisis than a homeowner who is just renting out rooms. VR2s have declined to 14 percent of the housing stock (3,000 dwelling units) from 17.4 percent in less than three years, much faster than anyone had predicted.

(The QSJ earlier had included VR1 in the calculations erroneously.)

“It’s been a success,” Gagnon said recently in an interview in her office, about the STR ordinance. (I liked the 2021 version of the planning director.)

The ordinance was challenged by real estate broker Erica Brooks, a former Planning Board member who took it all the way to the state Supreme court before losing.

The code enforcement officer has had to chase down the cheaters and the careless landlords, including former Planning Chair Tom St. Germain and his wife Nina who failed to renew their permit for their rental as the QSJ previously reported.

Why is all this relevant now?

Because the Town Council’s questioning the land-use ordinance to manage cruise ship visitation is a foundational premise of its proposal to repeal it. Its presentation on June 13 was full of generalities and false assumptions.

“Disconnected from the reservation system” may actually be an asset. The council itself characterized the clumsy make-shift arrangement as having “No formal, written policy or contracts for managing ship/ passenger visitation - No formal mechanism for managing future visitation– cruise ship committee discussion and annual report to council - No limit for how far out reservations could be booked.”

An easier way would simply to require Ocean Properties to copy the code enforcement officer its invoices to the cruise ships for actual passengers who disembarked. The town may do spot checks to catch cheating as it does now with landlords.

“No monthly caps, ship size limits, or seasonal limit, ships per day.”

Answer: Who cares? The cap is 1,000 a day, as federal judge Lance Walker so stated in his ruling Feb. 29.

And finally, “No written agreement between cruise ships and Town.”

When was the last time a regulatory body required agreements with the industry it’s seeking to regulate?

Did the planning department require agreements with all the landlords in town for the STR regulation?

Almost another year after the landmark vacation ordinance vote in 2021 - on Nov. 8, 2022 - voters approved another landmark ordinance to stem the flow of cruise ship passengers into town by capping disembarking passengers to 1,000 a day.

The vote was overwhelming, with a much bigger margin than the short-term rental ordinance.

It came after a survey disclosed significant disaffection among residents with the town’s cruise ship policies.

That prompted an initiative led by veteran citizens activist Charles Sidman, who in just a few weeks was able to gather the 300 signatures needed for a referendum question.

Then things went off the rails.

It’s a painful chapter in Bar Harbor history and perhaps the root of all its current problems.

A brand new Town Council chair, Val Peacock, and a brand new town manager Kevin Sutherland, conjoined at the worst time - they were both newbies in a hotbed of controversy.

Sutherland had a fraught history in Saco, where he was the city administrator. It took me only 45 minutes online to unearth his sordid past and report it, leaving the obvious question of whether anyone did due diligence on this guy. He was the sole recommendation of the manager search division of Eaton Peabody, the law firm of APPLL, which is suing the town.

In Saco, Sutherland was engaged in multiple fracases. He fired the parks and recreation director who then sued the town. He placed the police chief and deputy on paid leave without ever saying why, according to news reports. They were reinstated two months later.

The most serious of those was a finding by the Maine Human Rights Commission that he discriminated against an older worker who then successfully made a claim against the town.

Sutherland resigned from Saco after it was clear the city council would not renew his contract. He went to work for a building contractor until Eaton Peabody found him.

He started in January 2022 as Sidman already had begun plotting his referendum question.

According to Sidman, Sutherland rebuffed his overtures to negotiate a common ground.

Sutherland instead forged his own path, to develop agreements with cruise lines which Judge Walker would characterize as essentially caving in to the industry.

All the while, Peacock and councilor Jill Goldthwait, members of a “working group” watched as Sutherland and Sidman pursued competing paths.

On Nov. 8, 2022, voters decided overwhelmingly in Sidman’s favor. Five weeks later, Sutherland would be out of a job.

But the scabs from the brawl have not healed.

On March 6, 2024, one week after Judge Walker issued his ruling in favor of “home rule,” the principle that a local municipality may determine its own welfare against outside interests such as the international cruise ship industry, the Town Council made up all manner of excuses of why it couldn’t enforce Walker’s order.

Suddenly the land-use ordinance was an encumbrance though the town implemented the even more challenging STR ordinance as it had more permitters than just one in the case of cruise ships - Ocean Properties, the only property owner affected because the Town Council a decade ago gave OP sole rights to disembark passengers.

James Smith is repeating Sutherland’s mistake by not engaging Sidman, who has two lawsuits against the town - one for not enforcing the March 17, 2022 citizens cap and another against the town appeals board for supporting the council.

More lawsuits are likely.

What would Smith’s answer be if Sidman, who has had a perfect record so far in the courts, wins any of those suits?

A better way would be for the town and Sidman to come to an agreement to modify the citizens ordinance to allow for a few more ships.

The council is only “showing its true colors,” Sidman said, of its appeasing the cruise ship industry against the interest of its citizens.

CORRECTION: In an earlier post, the QSJ misspelled Rob Leavitt’s name. He is the new harbor master in Southwest Harbor.