BAR HARBOR — The question of whether a citizen petition aimed at limiting cruise ship passenger disembarkation will be on the Nov. 8 warrant is still up in the air for the Town Council.
After multiple lawyers raised legal concerns about the petition during Tuesday night’s public hearing on the matter, council members said they needed more time to decide if they will move the measure forward to the ballot box. They have until Aug. 16 to place the amendment on the warrant for town meeting in November in order to be in compliance with the town’s code.
“We all swear an oath to uphold the Constitution. It’s an oath that I personally take very, very seriously,” said Town Council Vice Chair Matthew Hochman. “We need to consult with an attorney to make sure that anything we put on the warrant is constitutional.”
In opening remarks addressing the petition, Charles Sidman, who led the citizens’ initiative, said the measure was on solid legal footing, but that claim was not supported by two lawyers attending the hearing on behalf of local clients.
Andy Hamilton, an attorney for Ocean Properties, said the petition, which amends the land use ordinance to cap cruise ship passengers coming into town at 1,000 per day, has a litany of federal and constitutional questions.
“I’ve been practicing land use law in Maine for 38 years, and I can tell you this is beyond the land use jurisdiction of this town. This is beyond the shoreland zoning jurisdiction of this town,” Hamilton said. “That authority has to give way to federal regulation because we’re talking about federal maritime commerce.”
Hamilton said the U.S. Constitution has three clauses that protect the rights of citizens to freely travel: privileges and immunities clause; the 14th Amendment due process clause; and the commerce clause.
“Anybody who’s followed recent Supreme Court decisions should be concerned about the right to travel,” Hamilton said. “It is revered in this nation. And it needs to be regarded in the context of this petition.”
Attorney Tim Woodcock, who said he was there on behalf of “another business in town” that he did not identify, said if the council decides to keep the petition off the warrant, the petitioners can challenge that in court; the court would then review the initiatives constitutionally, which he said would be found invalid.
“The ordinance is flatly unconstitutional,” said Woodcock. “Under the strength of what is called the Dormant Commerce Clause, the federal government has control over interstate and foreign commerce.”
In an email to the Town Council the following morning, Sidman said that according to Town Code C-48, the council has no option but to put the proposal on the November ballot.
The town’s code states that if council fails to adopt an initiative within 60 days or fails to repeal it within 30 days after the date the petition was finally determined sufficient by the council– which occurred on June 21 – it shall submit the initiative to the voters.
“Will legal action to bring the Town into compliance with existing law have to commence now?” wrote Sidman, who called on the council to “rectify last night’s mistakes. “And if not, the next initiative may well be a ‘Citizen’s Veto’ or ‘Recall’ addition to the Town Charter.”
*Correction: This story was updated to reflect the correct date in which the petition was given a final determination of sufficiency.