Elements of Sidman Case Against Town Dismissed But Case Moving Forward

One of four claims remains

Jul 12, 2024

BAR HARBOR—Multiple aspects of Charles Sidman’s case against the Town of Bar Harbor and its Town Councilors were dismissed this week by Maine Superior Court Justice Thomas McKeon. However, one claim remains.

The court held oral arguments in the case on July 3.

The complaint originally named both the town and all its current councilors. The amended complaint alleged that the Town Council unlawfully interfered with the administration of the town’s land use ordinance pertaining to the new cruise ship rules.

The rules are part of a citizen’s initiative that caps daily cruise ship disembarkations at 1,000 a day. They were passed by voters in November 2022. They will be enacted July 18. The town’s actions limiting the disembarkations were challenged by some area businesses, a newly formed group called Association to Preserve and Protect Local Livelihoods (APPLL) and a pilots association.

The changes were upheld in a February 29 federal court decision. It is currently being appealed.

Though still about cruise ship disembarkation rules in the town ordinance, this case is an entirely different lawsuit, in state and not federal court, and focuses around a March statement by the Town Council about the upcoming cruise ship season, which is now currently underway. The cruise ship season began in May. It ends in October.

Sidman’s amended complaint alleged that the March statement was not voted on and that the Council didn’t have “authority to substantively modify, suspend, or nullify provisions of the code,” nor authority about how the town’s ordinances are to be enforced.

It argued that the Council’s March statement “acts as an illegal legislative veto, suspension, and/or amendment” of the ordinance. It asked that the Court make the town revoke the March statement.

Sidman, his lawyers argued, “will suffer irreparable harm if an injunction is not granted because the Town Council’s resolution will result in his inability to use and enjoy his property, have an adverse impact on his business, and serve to nullify his efforts to petition the government and pass the ordinance.”

In a press release, the town said, “Following the court decision predominately in the town’s favor on Thursday, the Town Council continues to pursue vigorous enforcement while examining alternative solutions to be voted on by the citizens.

“Judge McKeon’s dismissal of these three claims validates the town’s position that these claims were frivolous. Furthermore, the removal of the individually named councilors from this case further proves this legal tactic was inappropriate and completely unnecessary.

“With regard to the sole surviving claim, the town is confident it will prevail.”

In Friday’s press release, the town also wrote,

”The facts remain that the town could not enforce this ordinance without the necessary rules and regulations. That the promulgation of these rules and regulations required the town to be responsible and measured in considering all aspects, including the final decision provided by Judge Walker. As soon as the town received that decision, it moved with speed and resolve to craft a set of rules and regulations to position the town for effective enforcement.

“Rules and regulations were posted for a first reading in May and adopted by the Town Council on June 18, 2024. They will now go into full effect on July 18, 2024, after the mandatory 30-day waiting period. The town now stands ready and prepared to enforce this ordinance.

“Despite unwarranted criticisms and pressures to act rash and reckless with enforcement, the town remains committed to taking a reasonable and measured approach that is legally responsible and publicly acceptable for the full enforcement and regulation of the disembarkation of cruise ship passengers.”

Sidman issued a rebuttal release Friday morning.

In it, he wrote, “In complete distinction to the press release just issued by the town, my attorneys view Judge McKeon’s decision yesterday as a substantial victory in that although several alternative legal rationales for relief were dismissed (although not termed ‘frivolous’), others remain and warrant a further trial examining and potentially upholding our continuing view that the town is misstating and misapplying the voter-passed ordinance even while (untruthfully) claiming to be ready to fully enforce it.

“What the town continues to call ‘measured and responsible’ actions in fact represent their simple unwillingness to carry out what the voters decided. Thus, our ‘criticisms and pressures’ to act, not ‘rash and reckless’ as the town state, but responsibly and faithfully to what the voters demanded, will continue. Anything else is not and will never be ‘publicly acceptable.’”

The court found that Sidman “had adequately alleged standing and ripeness to allow for his claim for declaratory relief to survive a motion to dismiss.” Sidman has said that the cruise ships have continued to negatively impact his business, which is to patrons of fine art.

The court granted Sidman’s earlier motion to amend his original complaint, denied the town’s motion to dismiss the second count, and granted it in other respects. There will be a management conference to create a scheduling order.

Sidman has said in court documents that cruise ship passengers impact an art gallery that he owns and runs with his wife. The gallery is in downtown Bar Harbor, which is also where cruise ships disembark. Cruise ships disembark on West Street. The Sidmans’ business is on Mount Desert Street.