Appeals Board Finds It Has No Jurisdiction Over Charles Sidman's Appeal
Appeal focused on Town Council's March 6 public statement about cruise ships
BAR HARBOR—Tuesday evening, the Bar Harbor Appeals Board unanimously decided that it did not have jurisdiction over Charles Sidman’s appeal of a March 6 press release from the Town Council about cruise ship rule-making.
Board Chair Ellen Dohmen said she was disheartened and frustrated and disquieted about the decision.
“Assuredly, the issue of cruise ships has been something that has been before this town for certainly, maybe, the past ten years. The Board of Appeals is an arm of our local government. Our mandate is to be available to the citizens of Bar Harbor who turn to us as the first line of recourse in the hopes of resolving issues on the local level,” she said after the decision but before the meeting was adjourned. “We serve the town. We are a particularly devoted board. I can’t tell you what a hard working board this is.”
“Not being able to deliberate on the substance of the issue is to feel stymied in our duty to serve the town,” Dohmen said. “It leaves me very disquieted.”
Jurisdiction was a legal stumbling block, she said, that kept the board members from doing the kind of service she wished they could have done.
In determining whether or not it had jurisdiction, the Appeals Board decided that the Town Council didn’t have the authority to interpret the town’s land use ordinance, that the Council’s statement did not have the force of law, and that there wasn’t a concrete decision made that was in the purview of the Appeals Board to adjudicate.
“You also have to determine that action that has taken place that you’re being asked to act on was by some entity that had the authority to interpret the land use ordinance,” Attorney Dan Pileggi said during Appeals Board deliberations. Pileggi acted as the Appeals Board’s counsel during the meeting. “I’m going to tell you that I can’t find it anywhere in the charter or the land use ordinance that gives those guys (town councilors) any power at all to interpret the land use ordinance.”
Stephen Wagner, arguing for the town against Sidman’s appeal, also said the board did not have jurisdiction. Robert Papazian, the attorney for Sidman, disagreed. The board had a 174-page packet of material to review before the meeting.
THE RELEASE
Sidman’s challenge of the press release is also before the Maine Superior Court and Papazian suggested that the Town Council’s March 6 press release and public statement that discussed the caps’ enforcement in the 2024 season, was in error.
The statement deals with the town’s rule creation and enforcement of the ordinance changes, which were approved by voters in November 2022 and cap cruise ship disembarkations to 1,000 or less a day without fines. The initiative also places the changes within the town’s land use ordinance under the code enforcement officer’s and harbor master’s purview.
That rule-making for the limits was paused during litigation. After the federal bench trial in 2023, which was ruled in favor of the town March 1, the Town Council authorized staff to proceed with making those rules dealing with the mechanisms of how to cap and count and fine cruise ship disembarkations. The council announced this in a March 6 press release, despite the current appeal of the original ruling. The season began May 5 and is scheduled to end October 28.
A portion of the Town Council’s March 6 statement read, “Most of the ships in question are scheduled to arrive in less than 90 days. Cancelling the bulk of the 2024 season now would be fundamentally unfair, would potentially expose the Town to additional legal liabilities, and would have a drastic fiscal impact on an already strained and nearly complete municipal budget.”
Reservations made after November 8, 2022 will be subject to the 1,000 passenger disembarkation limit. So, the 2024 season will have a mix of pre-existing reservations and limits based on the citizens initiative effective November 9, 2022.
Sidman, a lead petitioner of the citizens’ initiative to make those restrictions and a defendant-intervenor in the federal suit, has also filed against the council, and individual councilors, seeking a more aggressive and more immediate enforcement. The date for that court case to be heard has not been announced.
DISCUSSION
Though the issues of standing and ripeness were discussed by all the attorneys present, the Appeals Board did not deliberate on those aspects of the appeal because it found it had no jurisdiction.
Earlier on in the two-hour meeting, Papazian said, “If the board decides in Mr. Sidman’s favor today, the Superior (Court) case goes away, saving the town a lot of money and litigation headaches and that’s in the realm of the Board of Appeals to do.”
The board was advised by the town’s attorney not to think of the case with that in mind.
“You guys aren’t the guardians of the LUO,” Pileggi said later in the meeting, but instead are a last line of defense before citizens have to go to court. It’s defined both by state statute and ordinance in each town to determine how much authority and in what areas a board of appeal’s purview applies. It’s quite specific in Bar Harbor, he said.
“Whether or not you can act is not a minor technicality,” Pileggi said. The desire to want ordinances to be enforced can’t be exercised at will on a case-by-case basis because it would create an arbitrary tribunal, he said, and he urged the members to think about jurisdiction in that way.
The council doesn’t have authority to “mess around in the land use ordinance” and the board doesn’t have the authority to tell them not to, Pileggi said.
CONFLICTS OF INTEREST
At the beginning of the meeting, Appeals Board Vice Chair Anna Durand and member Cara Ryan expressed that they felt they may have conflicts of interest. For Durand, this was because of a 2017 interview with the New York Times and speaking at the town meeting against the Chamber of Commerce receiving town funds to support wayfinding services after the Chamber became members of APPLL. For Ryan, it was for advocating in support for the ordinance, speaking publicly about that, and for being a called witness for Charles Sidman in the federal case against the town by APPLL and the Penobscot Bay Pilots Association. During that trial, she received a $100 witness fee. She was not called to the stand and donated $100 to Charles Sidman’s legal funds. The Appeals Board found both women did not have a conflict of interest.
OTHER INFORMATION
Earlier this month, the plaintiffs in the federal case against the town’s cruise ship caps filed an injunction pending appeal. An injunction is a request to stop the action from occurring until the outcome of the appeal of the federal court’s decision supporting the town.
Sidman is running for Town Council. Two sitting councilors—Vice Chair Gary Friedmann and Joe Minultolo—are running for re-election. There are two seats available. Other candidates include Michael Boland, Nina St.Germain, and Nathan Young.
LINKS TO LEARN MORE
To read the packet of information
For council candidates and Warrant Committee candidates and their answers to our questions, go here.
Related cruise ship lawsuit stories are listed below.
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This article has been corrected. The vote, which was not audible or declared was not unanimous on both matters of conflict of interest. Also, more clarity was added about Anna Durand’s reasons that she gave about what she thought might be her own conflict. Many thanks to Durand for her help with clarifying those points.
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Sidman is one man who needs to just go away. How many more lawsuits will this idiot file and lose, He is self-serving who believes the world revolves around him and only him. At first, I thought maybe there was something to what he was advocating but now I realize this man has some serious issues with dealing with this town, the town council and the taxpayers of Bar Harbor. I for one don't know where the money will come from to keep paying higher property taxes in order for Sidman to keep stroking his ego with all his lawsuits, but the taxpayers are the ones paying. My opinion of him is one of a selfish, arrogant, holier than thou blight upon our community and town.