EASTPORT — The city’s attorneys have advised the Eastport City Council that a citizen‑initiated Commercial and Industrial Development Ordinance requiring public votes on large‑scale development projects is “unenforceable and unlawful.”
The attorneys said municipalities “generally cannot mandate and regulate election procedures by ordinance; such changes must be enacted through the statutory charter process.”
Because the proposal conflicts with the city charter, they recommended the council reject it.
A second citizen‑initiated ordinance, which would permanently ban large‑scale data centers, was found to be legally sound.
The attorneys said that because both proposals aim to achieve the same outcome, only the ban is necessary to block the proposed DeepGreen $100 million underwater data center project.
Late Friday, two days after Eastport held public hearings on both proposed ordinances, City Councilor Karen Raye posted the attorneys’ analysis on Facebook “in the interest of full transparency.”
Raye noted that the opinion does not change the process already underway for each ordinance.
The City Council asked attorneys Stephen Wagner and Alex Weatherbee of Rudman Winchell to review the ordinances to determine whether they are legally enforceable and to explain the process the city must follow to handle the initiatives.
In June, the Eastport Coalition for Healthy Oceans, or ECHO, submitted two petitions to City Clerk Ella Kowal for certification. Each petition included language for the proposed ordinances and received more than the required number of signatures for adoption or placement on the November ballot.
The proposal to ban large‑scale data centers can go to voters with minor formatting changes, according to the attorneys. But the ordinance requiring voter approval for any new industrial or commercial development larger than 25,000 square feet on land or 10,000 square feet in the ocean — if the permanent ban passes — is flawed, according to the attorneys’ Aug. 5 memorandum, issued the same day as the public hearings.
Petitioners said both ordinances would be retroactive to June 1, 2026.
In Raye’s Facebook post, she wrote, “Many people have said they appreciated having a clearer understanding of the process now underway,” prompting her to share the six-page memorandum from the city’s legal counsel.
The document concludes that the “City Council has the authority to decline to put an unlawful ordinance on the ballot — we recommend it exercise this authority” regarding the Commercial and Industrial Development Ordinance.
In advising that the city cannot mandate or regulate election procedures by ordinance, the attorneys referenced Brooks v. Town of Bar Harbor (2024) among the precedents informing their opinion. In that case, the court determined that election requirements contained only in an ordinance — and not in a town charter — are not enforceable.
“The Commercial and Industrial Development Ordinance requires the City to hold an election under certain conditions. There is no such election requirement in the City Charter or Titles 21‑A or 30‑A,” the legal opinion said, adding in its commentary that the ordinance might also be “unconstitutionally vague.”
In addition to these issues, the ordinance — as written — requires updating the definition of water quality in the Shoreland Zoning Ordinance to classify water “from a heating or cooling system that differs significantly in temperature” from existing waters as a pollutant.
The attorneys said that language is not specific enough to provide fair notice to developers about temperature requirements.
The opinion of Rudman Winchell is that the City Council should dismiss the proposal mandating a public vote on a large‑scale project, citing cases from the 1950s as precedent: La Fleur ex rel. Anderson v. Frost (1950) and Farris ex rel. Anderson v. Colley (1951).
In both cases, the court ruled that a city cannot be compelled to put an ordinance on the ballot if doing so would conflict with the charter in a way that would render the measure void even if voters approved it.
The memorandum also broke down the city’s process for accepting a citizen-initiated ordinance into law.
Once petitioners are certified by the clerk, which has been done, the city must call a public hearing to allow residents to speak on it, which it did last Wednesday.
After the hearing, the council can choose to adopt the ordinance with no changes or nonsubstantive changes, or not adopt the ordinance, in which case it must be put to public vote with no changes or nonsubstantive changes.
Raye said the Rudman Winchell opinion is not necessarily shared by councilors and will not affect upcoming scheduled hearings, though it will be part of the overall discussion.
At the public hearing last Wednesday, Raye said she believes the City Council should adopt a moratorium on data centers to give members time to weigh their options. She said the issue is expected to be discussed at the next council meeting.
Raye then provided several key dates:
- Wednesday, Aug. 12: Regular City Council meeting with a moratorium on the agenda.
- Monday, Aug. 24: Special Planning Board public hearing to review both proposed ordinances and make recommendations for adoption, and nonsubstantive changes.
- Wednesday, Sept. 9: Regular City Council meeting with both ordinances on the agenda.
In February, DeepGreen Western Passage SPV LLC applied for a 48‑month preliminary permit with the Federal Energy Regulatory Commission. If granted, it would allow the company to conduct engineering and environmental studies in an early step toward developing a tidal‑powered underwater AI data center off Eastport’s Kendell Head area, according to the filing.
DeepGreen has called the project an “infrastructure layer expansion” to the underwater turbine technology developed by Ocean Renewable Power Co., or ORPC, which once held a preliminary permit at the same location for an earlier project with the city of Eastport to create an energy‑efficient microgrid.
In a statement Monday, ORPC’s chief executive officer, Stuart Davies said: “ORPC has no affiliation with the DeepGreen project and is not participating in its development, permitting, financing or deployment. DeepGreen has referenced ORPC’s prior work in the region and identified ORPC technology as a potential future integration, but there are no agreements or active projects between our organizations.”
Davies added, “As we’ve said previously, ORPC welcomes opportunities for tidal energy to play a role in Maine’s future energy ecosystem, but any suggestion that ORPC is involved with or supporting the DeepGreen project would be inaccurate.”
Birdy Velveteen, a coalition organizer with ECHO, said that the legal opinion threatens “to throw out the voter approval ordinance on a technicality.” She said the council has the right to amend petitions in its charter, Section 2.02, and can remedy the petition while preserving petitioner intent.
Language in the ordinances has been a point of contention for the organization.
Deborah Gilespie, a spokesperson with ECHO, called on the council at the hearing last week not to change the language and to add the measures to the ballot.
Velveteen told Monitor Local: “We shouldn’t have to be legal scholars to participate in democracy. Citizen initiatives are supposed to be accessible to the public. Our city lawyers are paid with our taxes, and they should work on our behalf. The council is using our tax money to thwart our own initiative.”
The Rudman Winchell memorandum includes suggested wording for councilors to use if they vote to dismiss the ordinance that requires a public vote on development projects, instructing the city clerk not to place the measure on the ballot or process it further.
ECHO said it plans to bring forward an updated version of the petition that requires a public vote on development projects, a measure Velveteen called “wildly popular,” to the City Council’s Aug. 12 meeting, in case the petition already before the council gets struck down.
