UPDATED: Federal Court Denies Cruise Ship Injunction
Charles Sidman asks town's Appeals Board to waive fees and reconsider his appeal
BAR HARBOR—The plaintiffs’ request for an injunction pending an appeal of the federal court’s decision about a case involving cruise ship limits was denied on Friday. If it had been granted, the injunction would have stopped the Town of Bar Harbor from pursuing those limits until after the decision on the appeal. The request is now likely headed back to Federal District Court.
The Penobscot Bay Pilots said Wednesday that the organization is content to let the matter follow the path specified by the court.
The town is currently pursuing cruise ship disembarkation changes approved by voters in November 2022 and is also pursuing a second track of action which involves public interactions and potential changes to the land use ordinance.
At its Tuesday night meeting, the Town Council unanimously amended one ordinance, and moved the Cruise Ship Disembarkation Ordinance to a June 18 public hearing, and it directed Town Manager James Smith to look for ways to begin to gather public input and feedback in order to put in place regulatory tools to manage cruise ship visitation.
The new rules in the town’s ordinances and operating procedures cut cruise ship visitations to 1,000 disembarkations a day. If there are more than 1,000 disembarkations, fines occur. The changes are meant to be embedded within the town’s land use ordinance. Opponents say that since those limits are so low, it will cut most, if not all, visitation, and that this will impact both local businesses and the town’s budget. Proponents say that the passengers cause pedestrian congestion on sidewalks and decrease the quality of life for Bar Harbor residents.
The underlined phrase “denied without prejudice” means that the injunction is currently denied, but can be sought again at a later point.
APPEALS BOARD
In 2021, a town survey that elicited almost 1,400 respondents, found that of those respondents, 55 percent thought the overall impact of cruise ships was negative. The same percentage found that the ships detract from Bar Harbor’s image as a tourism destination connected with Acadia National Park.
The town’s new late 2022 plan was managing cruise ship arrivals through memorandums of agreement between the town and the cruise lines. The most recent agreements set daily limits of 3,500 to 3,800 passengers and also monthly limits, which town officials believed would make cruise-free days each month. The limits changed depending on the season.
Charles Sidman, who is running for Town Council and was a defendant intervenor in the federal case against the town, has appealed the Town Council’s March press statement about the timeline for the rule making enforcement of the new limits. He appealed the decision to the town’s Appeals Board. He also filed a law suit against the town and sued each of its current town councilors.
Earlier in May, the Bar Harbor Appeals Board had determined it did not have jurisdiction to hear the appeal. Sidman is now requesting that the town’s Appeals Board reconsider its decision.
In a five-page request for reconsideration sent to town officials last Thursday, Sidman’s lawyer, Robert Papazian of Curtis Thaxter, argues that the town interpreted the land use ordinance, that the March 6 statement issued by the Council was “a decision with the force of law,” and that “newly discovered evidence shows that the Town Council intends to further delay enforcement or never implement the (cruise ship) ordinance as it is enacted.”
Sidman also sent a direct email to Appeals Board Chair Ellen Dohmen expressing displeasure at the fee ($1,675) to permit the reconsideration request and move it forward. That fee came from town staff.
Sidman argues in the email that it is the same fee as large commercial projects and since there is no specific property involved, it should not apply. He also argued that the fee request came in late on a Friday. He also requested the return of the last fee he paid for the Appeals Board consideration, which was $856.
“In summary,” he wrote. “I regard this whole interaction as unworthy of the professional and honorable public administration expected of our Town. Instead, it represents precisely the sort of official government intimidation, shake-down and extortion that routinely takes place in second-and third-world countries. I hope it will not be necessary to file another action in State Superior Court concerning this Board’s behavior and decision, but will if necessary (and then request that it be merged with the present suit against the Town.) Surely, we in Bar Harbor can and should do better.”
UPDATE:
A request for comment from the Bar Harbor town manager, town attorney, Town Council chair, and APPLL leadership was made, but was not received by press time.
However, after this article was printed, we received a copy of a May 28 letter from Stephen Wagner, town attorney to Dohmen and Planning Director Michel Gagnon, and members of the Appeals Board.
In it, Wagner details rules for requests for reconsiderations by applicants and by board members and that there is no “newly discovered evidence” regarding the Board’s jurisdiction, which Wagner says needs to be provided for an Appeals Board reconsideration. He also writes that the request should be dismissed because Sidman did not pay the $1,675 fee. He writes that Sidman’s request for a reconsideration by a member of the Board of Appeals “would be wildly improper.” And if that were to have happened, it needed to occur within two days of the Board’s ruling. He also said, “the Board should disregard Mr. Sidman’s remarkable threat to ‘file another action in State Superior Court concerning this Board’s behavior.’”
SECOND UPDATE:
On May 29, Sidman sent an email to the press, lawyers, Appeals Board members, Town Councilors, and the town manager.
The text of the email read,
“To all concerned:
“With the attached memo from Town Attorney Wagner and formal decision by Planner Bondy on behalf of the Board of Appeals, the following are now clear:
The Town has doubled down on its unmistakeable shake-down of assessing “Large Project” fees for Board of Appeals reconsideration of the Town Council’s continuing illegal obstruction, modification and falsification of the citizen-voted Cruise Ship Disembarkation LUO. There is no “project”, large or small, justifying any such fees.
Any Board of Appeals member could (still?) request reconsideration of this matter, in which case by the official schedule there would be no fee to “waive”, as Ms. Bondy so disingenuously writes.
The Board of Appeals has been effectively captured and neutered as an independent entity in Bar Harbor government.
Further State Court litigation will follow.
“These continuing actions by Town officials (in multiple departments) concerning the LUO that they have never wanted, have consistently opposed and are still trying to obviate are significantly degrading the reputation and legitimacy of Bar Harbor’s entire local government, perhaps rising to a level warranting racketeering investigation by higher authorities. Combined with their official actions, the public utterance and defense of hate speech and personal vilification by several Town Councilors (ex. Shank and Hochman), in synchrony and support of both public and private harassment and threats of the vilest nature, are unworthy and demean the entire Council and community. Council should censure these members, and all are complicit by their silence and support. When Bar Harbor’s voters go to the voting booth two weeks from now, it will be up to their private consciences whose behavior and character they wish to associate with, support and be represented and served by.
“Sincerely,
“Charlie”
LINKS TO LEARN MORE
The letter from Stephen Wagner. It is labelled 5.
Charles Sidman’s letter to Ellen Dohmen.
Additional attachments sent with the May 29 letter.
The following link is Sidman’s May 21 public comment.
The following documents were attached to Charles Sidman’s Memorial Day email to members of the press, town staff, Appeals Board members, and Town Councilors. The excerpt choices are his and/or Papazian’s.
Two of the latest articles here.
Tonight in Town Hill there is a candidate’s forum from 6 to 7:30. Details are below. We’ll be posting about the forum in each of today’s articles.
