Golden Anchor Amends Complaint Against Town Over Cruise Ship Disembarkation
BAR HARBOR—The Golden Anchor filed an amended complaint against the Town of Bar Harbor, April 3.
The complaint involves the company’s ability to disembark cruise ships at its location on West Street, the Harborside Pier, which is also known as the Golden Anchor Pier. It was filed by Timothy C. Woodcock, Esq. of the firm Eaton Peabody.
Woodcock specifically mentions the consideration of the Golden Anchor’s late materials by Appeals Board Chair Anna Durand and Vice Chair Cara Ryan and the rest of the board. The November inclusion of those materials were denied by the board.
Ryan had been prepared to testify at a federal trial supporting the ordinance the prior year as a witness for Charles Sidman, who’d been granted intervenor status in the suit against the town. She was not called. An ethics complaint was filed against her late last year and eventually discussed while there was a hot mic that recorded an executive session of the Bar Harbor Town Council. Both Ryan and Durand recused themselves from the December 10 proceedings.
The position papers had not been filed by noon “within 20 days” of the scheduled December 10 hearing, but were filed before the end of that same workday. Timothy Woodcock argues that this means that “board rules were” considered “superior to and controlled the land use ordinance, itself, which contained no such deadline for noon on the twentieth day.”
The Golden Anchor also argues that the November denial of the materials and similar denial to reschedule a December 10 hearing, reversed the normal filing sequence for appeals, allowing the town to submit position letters first, rather than the business.
The alleged complaint specifies that the town’s appeals board exceeded its authority and jurisdiction and that the land use ordinance was affected by that, saying that there was bias involved in the proceedings, lack of substantial evidence, and an abuse of discretion.
“Allowing BOA Chair Durand and BOA member Ryan to participate in and direct the BOA to reject plaintiff’s position letter and supporting materials when both were conflicted from considering plaintiff’s appeal due to their longstanding opposition to cruise ships in general, cruise ship visitation to Bar Harbor, and their hostility to and bias against plaintiff,” Woodcock writes.
UNLAWFUL EXPOSURE TO CIVIL SANCTION
The complaint also says that the monetary sanctions imposed that can range from $100 to $5,000 “for each ‘excess authorized’ disembarking person is a risk of ‘potentially catastrophic fines.’” Yet, he argues, the town doesn’t give the Golden Anchor authority to bar people from disembarking.
That, Woodcock argues, exposes the company to liability “based on the conduct of third parties which conduct Chapter 52 does not authorize plaintiff or any town official to bar.”
It also argues against the categorization of the 1,001 person to disembark on a calendar day as a public nuisance.
NOTICE OF VIOLATIONS AND APPEALS
After voters approved changes to the town’s land use ordinance concerning disembarking passengers, limiting it to less than 1,000 a day without fines, and narrowly upholding those changes, the town issued a notice of violation, August 5, against the business.
The business has not applied for a permit—which the town now requires—and instead has continued disembarking passengers with its pre-existing license, which the company has done since 1998.
The business appealed the notice to the town’s board of appeals. The appeal was denied, December 18. The Golden Anchor, on September 10, 2024, also filed a declaratory judgement action questioning the validity of Chapter 52, the town’s new disembarkation ordinance. That judgement is pending.
Only cruise ships that had been confirmed by the town’s harbormaster previously tendered and disembarked at the pier. Though the town gave the business a notice of violation for disembarking passengers onto the pier after the ordinance went into effect, the town also collected cruise ship fees on those same visiting ships, Woodcock argues.
The amended complaint still challenges whether or not the cruise ship ordinance is valid as well as the appeals board’s denial of the company’s appeal. It argues that the company has a longstanding use that is lawfully nonconforming and that the Chapter 52 has no provision which would allow it to both obtain a permit and preserve its vested rights.
The town is delegating standards about differentiating seafarers from other “persons” to the business, but those are governmental responsibilities, the complaint argues. It also argues that the town has violated due process laws of the Maine Constitution and the Fourteenth Amendment of the United States Constitution.
The complaint also states that since Chapter 52 was not approved at town meeting, but via the town council on June 18, 2024, it is not in keeping with the town’s charter.
“Under the town’s charter, the town council may not alter, amend, or add to the town’s land use ordinance,” Woodcock writes. “All such changes to the land use ordinance may only be adopted by Bar Harbor voters at large in a town meeting.” He adds rationale that Chapter 52 is the “legal and functional” equivalent to the land use ordinance.
While arguing that the town has violated the Golden Anchor’s “liberty, property, and equality interests,” which are protected by the Maine Constitution, Woodcock also asks the court for relief to keep the town from enforcing Chapter 52 against the Golden Anchor, and also paying its attorney’s fees.
Another count argues that the Golden Anchors’ “right to wharf out under the Colonial Ordinance and to expand and operate the Golden Anchor Pier and the Wharves and Weirs Act” is violated.
OTHER FILINGS
Charles Sidman has also filed in Maine Business Court, against the Town of Bar Harbor and the Golden Anchor, L.C. his opposition to the town’s motion to dismiss the second complaint in the suit. Sidman was the lead petitioner in the citizens’ initiative that changed how the town allows cruise ship disembarkation.
Sidman’s March 25 filing asks for declaratory relief about whether he can participate in the case as an interested party and if the land use ordinance even allows cruise ship passengers to disembark in the town’s shoreland general development district.
“Count II is seeking a declaration that §125-47 of the LUO has never allowed the disembarkation of cruise ship passengers in the Shoreland General Development I District. Section 125-47 is the zoning provision governing allowable uses in the Shoreland General Development I District. It provides a limited list of allowed activities or structures, activities or structures requiring site plan approval, and activities or structures requiring permits from the CEO. Notably, ‘any use not specifically allowed as either a permitted use or a permitted use with a site plan approval is specifically prohibited.’ By the Board announcing that such a use ‘is, and has been, a permitted use in the applicable zoning district,’ it has unlawfully amended LUO § 125-47 to allow a ‘cruise ship disembarkation facility’ and/or ‘passenger terminal,’ as defined by the code, to operate in the district,” Sidman’s attorneys write. “Instead of amending the LUO through proper channels, LUO § 125-9, the board unlawfully amended the LUO by fiat and made a zoning decision, allowing an additional use that is not, and has never been, allowed in the district.”
The town of Bar Harbor hopes to receive millions in fines from the Golden Anchor, alleging that the business is operating an unlicensed cruise ship disembarkation facility.
“Having completed the local administrative appeal of the code enforcement officer’s notice of violation, this is the next step in recovering fines and asking the court to order the pier owner to follow the law concerning cruise ship disembarkation,” the town wrote in a press release.
The March 10 filing in Maine District Court states that the business disembarked passengers to its West Street location 47 times without a permit for each day, each day holds a maximum penalty of $5,000 for a total of $235,000 as well as the $100 penalty for each unauthorized disembarkation on each day, an estimated total of 23,016 people, for a total of $2,301,600. It requests that the business stop disembarking passengers until it has a permit.
The complaint also alleges that the Golden Anchor allowed 12,742 passengers, total, off cruise ships and onto its property on six different days for a sum of $1,274,200 at $100 per passenger. Each day has a maximum penalty of $5,000 (totaling $30,000). It also requests a reimbursement of attorneys’ fees.
LINKS TO LEARN MORE
Other filings available at the town’s site.
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Should have banned all cruise ships after one dump it's septic waste in the harbor years ago.