BAR HARBOR — The Golden Anchor, which accepts tenders from cruise ships to its property, has filed an administrative appeal to the town’s notice of violation that was issued last month.
That notice of violation was issued because the 55 West St. property, which has been accepting cruise ship tenders for years, did not apply for a permit, which is now required under the 1,000-a-day limit rules that were enacted this summer.
The company is also part of a federal appeal of Justice Lance Walker’s decision early this year upholding the new town limits, which are currently set within the town’s land use ordinance and were approved by voters in November 2022.
The notice of violation is from Aug. 5, 2024. The application for administrative appeal was filed Wednesday, Sept. 4, 2024.
In the 96-page administrative appeal, attorney Andrew Hamilton argues that the company already has an approved site plan and a Wharves and Weirs Act permit that had been issued by the town. Therefore, he argues, the company should not be required to file for new permits. The new permits are required under the new cruise ship disembarkation rules.
Those rules are up for potential repeal by the voters in November. In their place would be a contractual disembarkation limit proposed by the town staff and Town Council. Instead of daily limits created by a counting mechanism, it would have daily, monthly, and seasonal caps based on cruise ship lower berth capacities.
Hamilton writes that the “Golden Anchor L.C. is required to challenge the claim by the CEO’s notice of violation issued…to preserve its rights.”
Hamilton also argues that the violations are part of Chapter 52 rather than Chapter 125 and therefore are “not a part of the LUO set forth in Chapter 125.” Following this argument, he asks that the Appeals Board determine if it has “authority to hear the appeal.”
Most of the 96 pages is supporting material showing assessing documents and other material.
Also, within it is a May 7, 2024 letter from Hamilton to the town where he writes, “The ordinance departed from the practice, going back many years, of collaboration and cooperation with cruise lines that had marked the town’s acceptance and management of cruise ship visits. The pier owners fully participated in this cooperative approach and worked with the town, the state, and several national consulting firms to develop a community-based approach to cruise ship visits. Their participation included the design and construction of new special-purpose tender vessels to bring cruise ship visitors to the piers in increments (rather than all at once) and working with the town to enhance management activity around the piers to improve safety, efficiency, and visitor experience.
“As the public safety officials for the town have attested, cruise ship visits have not strained the town’s public safety services and, where those visits have required the provision of particular town services, the town has instituted fees to cover those costs. In the recent past, those fees have exceeded $1,000,000 annually.”
He also argues that until the appeal is decided, the ordinance’s constitutionality is still up in the air.
“On March 1, 2024, the federal court issued a decision finding that ordinance’s application to ‘persons’ violated federal law protecting seafarers’ right to shore access, therefore, unconstitutional under the Supremacy Clause of the U.S. Constitution. The court denied plaintiffs’ and pilots’ other constitutional challenges. Plaintiffs and the pilots have appealed the federal court’s adverse rulings to the First Circuit Court of Appeals as of March 29, 2024. Until the First Circuit decides that appeal, the ordinance’s constitutionality will remain unresolved,” he writes.
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