Lawyer rebuts pier opponents

BAR HARBOR — A deep divide continues between proponents of a town plan to build a cruise ship pier at the former international ferry terminal and a group concerned that such development would encourage unwanted growth in cruise tourism here.

Two zoning questions come before voters at town meeting elections next month. Town attorney Ed Bearor issued a written opinion this week that the two amendments would be in conflict if both are approved by voters. He also countered several claims being made by opponents.

“The mere fact that the competing provisions exist would have a chilling effect on anyone who might contemplate development of a passenger terminal,” he wrote.

Article 12 was prepared by the town Planning Board, whose members have said that the new district is intended to specifically allow development of a cruise ship pier but also imposes restrictions aimed at fitting new development into the neighborhood.

Article 13 is a citizen initiative that proponents say would preserve the status quo, in which cruise ships anchor in Frenchman Bay and send passengers ashore via small “tender” vessels, and give voters more ability to limit cruise ship operations. It would bar any ship longer than 300 feet from docking anywhere in town, essentially blocking plans to construct a cruise ship dock at the terminal property.

The town hopes to purchase the ferry terminal property from the Maine Department of Transportation (DOT) under a purchase option agreement approved by the Town Council. However, if Article 13 is approved by voters, the agreement is terminated.

Supporters of Article 13 take issue with the characterization of their proposal as a “cruise ship moratorium referendum” in the purchase option agreement between the town and the DOT and claim the state is unfairly interfering in town decisions.

Bearor said the condition that Article 13 be rejected is consistent with the DOT’s position dating back more than a year. He cites a March 2016 letter from Maine Port Authority director John Henshaw to the town “explaining that use of the property as a cruise ship port was not negotiable.”

Bearor’s letter also supports arguments made by Planning Director Bob Osborne at a public hearing last week, including a claim that passenger caps in Article 13 may not apply to ongoing activities or to activities at the town pier or other pier facilities.

The Planning Board took pains to present a proposal that would not be “spot zoning,” even though their new proposed zone only includes a single parcel of land. Bearor says Article 13 offers no such protection.

“If the property can’t be used as a passenger terminal and deepwater port facility, then its limited use as a facility for cruise ships less than 300 feet in length may very well be unlawful ‘spot zoning,’” he wrote.

Resident and attorney Arthur Grief, one of the drafters of Article 13, wrote in a letter to the editor in the May 11 edition of the Islander that the goal in a report by town consultant Louis Ajamil of Bermello, Ajamil and Partners “was to triple the number of cruise ship passengers visiting Bar Harbor.”

Ajamil wrote to Town Manager Cornell Knight this week to refute that claim. “We have always stated that the number of passengers in Bar Harbor should be guided by both the market conditions and the desires of the community,” he wrote. “To state that the pier is guided by a goal to triple the passengers is not correct.”

Greif also argued in a May 16 letter to councilors that the DOT would not legally be able to sell the property on the open market, as town officials have argued is likely if Article 13 passes. He and legal partner Tracy Collins argued in the letter that the DOT purchased the property with funds from a state transportation bond.

Henshaw told town officials this week that bond funds were not used to purchase the property.

Town and state officials also have expressed concern that Bar Harbor’s Class A Port of Entry status may be in jeopardy if the ferry terminal property is developed as something other than a maritime transportation facility.

The Class A status, designated by Customs and Border Patrol, allows vessels that are foreign-flagged or arriving from a foreign port to clear customs and disembark passengers here. For ports without that status, such as Rockland, only crew from such ships may disembark.

“There are no current plans to change that classification,” a CBP spokesperson said via email.

CBP has not communicated standards for keeping the Class A status in writing, Town Council chair Paul Paradis said, but the argument has been that the status is grandfathered due to the former international ferry operation at the Eden Street property.

Liz Graves

Liz Graves

Reporter at Mount Desert Islander
Former Islander reporter and editor Liz Graves grew up in California and came to Maine as a schooner sailor.

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