Golden Anchor Files Complaint Against Bar Harbor
Another Court Case Involving Bar Harbor Cruise Ship Changes Emerges
BAR HARBOR— The Golden Anchor has challenged, in Hancock County Superior Court, the Bar Harbor Board of Appeals decision that upheld the town’s notice of violation against the pier owner, January 31.
That notice of violation (NOV) concerns the pier’s lack of a daily town permit to disembark cruise ship passengers at 55 West Street, which is where it has been historically accepting cruise ship passengers prior to the town’s rule changes limiting those passengers according to daily caps and requiring a permit rather than a license to do so. The rules also do not allow more than 1,000 to disembark without fees.
The complaint calls for a review of the town’s actions.
In the 57-page complaint, P. Andrew Hamilton of Eaton Peabody, filed for the Golden Anchor LC, which owns Bar Harbor property and has hosted cruise ship disembarkation at its West Street pier (aka Harborside pier aka Golden Anchor pier). According to legal documents submitted by the Golden Anchor, the site has been used since 1998 to disembark thousands of cruise ship passengers. The company has owned it since 2000.
The company expanded the pier from 2002 through 2008. At which time, Hamilton writes, “the harbor committee unanimously agreed to recommend approval of the wharf license for the expansion of the Golden Anchor pier on the north side of the existing pier.
In so doing, the harbor committee memo of March 14, 2008, cited ‘the primary reason for the recommendation is to move the cruise ship tender landing and associated traffic to a more isolated part of the harbor.’"
The case itself derives from daily cruise ship disembarkation limits of 1,000 or less voted in by residents in 2022 and narrowly upheld on the November 2024 ballot and the town’s disembarkation ordinance and processes meant to enforce those limits.
The Golden Anchor has already filed against the town in Maine’s Business and Consumer Court about the August 5 notice of violation it issued. The notice alleges that the company violated the town’s disembarkation ordinance.
The town approved reservations for cruise ships arriving after July 24, 2024, and if that reservation visit had not been approved and confirmed by the town, the business would not have received a notice of violation, Hamilton argues.
“Based on the town's action confirming the cruise ship visit request for the July 25, 2024 visit and the town's acceptance of the port development and disembarkation fees associated with that visit, plaintiff could not prevent the disembarkations from occurring because the Golden Anchor Pier was the pier designated for such disembarkation,” Hamilton wrote.
The plaintiff’s requested relief includes the court finding the town’s appeals board’s December 18, 2024 decision a violation of statutory (and constitutional) provisions, exceeding its authority and that its procedure was unlawful and impacted by bias, arbitrary and capricious; that the ordinance itself violates the Maine Constitution and the United State Constitution; that the town be barred from enforcing the ordinances against the Golden Anchor’s pier and enforcing the notice of violation, that it bar the town’s requirement that the Golden Anchor have a permit; and that the town pay the Golden Anchor’s attorney fees and costs related to the complaint.
THE JANUARY 31 FILING
The filing against the town has nine main grounds. Hamilton contends that the disembarkation ordinance was enacted by the town council and “thereby, changing the meaning of the land use ordinance in violation of the town charter and the town's implementing ordinance provision governing substantive amendment of the Town's land use ordinance at section 125-9(E), both of which limit the authority to approve substantive amendments to the town meeting.”
The complaint argues that the process for adopting the ordinance was invalid, therefore the town “violated the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and article I, section 6-A of the Maine Constitution.”
Hamilton argues that the town voters are the only ones who can alter, amend, or add to the town’s land use ordinance and this must occur at town meeting. He argues that though voters approved cruise ship disembarkation limits, Chapter 52 itself (the disembarkation ordinance) was not approved. This becomes a kefluffle when looking at the definition of “person,” he argues. He also argues that there are contradictory messages about the harbormaster’s responsibilities.
“By attempting to change the meaning of the land use ordinance by means of a town council-approved ordinance, the disembarkation ordinance exceeded the powers of the town council, violated the town charter, as well as Section 125-9(E) of the land use ordinance, and is null and void,” he writes.
Hamilton’s third point argues that the property’s earlier site plan approval by the town and the previous Wharves and Weirs Act license issued by the town “for its pier for marina and cruise ship disembarkation purposes, among other purposes without numerical limitation,” as well as the town’s attempts to allegedly “coerce plaintiff to accede to the effective invalidation and replacement of said prior town permits with a new permit for the Golden Anchor pier, that the disembarkation ordinance violates the town's protection of longstanding uses under Sections 125-52 through 124-54 that are made lawfully nonconforming by virtue of any amendment of the land use ordinance, and further violates plaintiff’s vested rights in said pier permits in violation of the United States Constitution and the Maine Constitution.”
The fourth point states that the town attempted to have the Golden Anchor help develop standards and processes that the town would then use to potentially impose fines on it.
Hamilton wrote, “That, in attempting to delegate to plaintiff, a private party, the duty and responsibility for developing standards and processes pursuant to which the town may impose fines on plaintiff which fines may range from $100 per violation, as determined by each ‘excess unauthorized person,’ to $5,000 for each such person, the disembarkation ordinance attempts to delegate to plaintiff duties, responsibilities and authorities that are inherently governmental and were and remain assigned to the harbormaster under 125-77(H), which duty and responsibility is inherently governmental and which the government is wholly barred from delegating, to a private party the disembarkation ordinance violates the Maine Constitution and related statutes; the Due Process Clause of the Fourteenth Amendment to the United States Constitution and both the Law of the Land and Due Process Clauses of article I, sections 6 and 6- A of the Maine Constitution.”
The fifth point argues that the ordinance, by fining the action of the Golden Anchor “for the actions of third parties” entering into Bar Harbor “without providing plaintiff with the authority and powers to avoid or prohibit the conditions giving rise to such fines and without authorizing town officials to exercise powers to enable plaintiff to avoid the conditions giving rise to such fines,” violates the Federal and state constitutions.
The complaint argues that the ordinance is meant to make the Golden Anchor commit to the town’s new permitting process under the ordinance’s authority, but that the “terms are invalid and unconstitutional,” therefore the town is overreaching in the authority that its charter gives it and has violated the company’s due process rights.
"In addition to requiring a permit, the Chapter 52 Disembarkation Ordinance also provides that all ‘CSDF owner[s] shall submit an application to the code enforcement officer, or designee, for a disembarkation permit to allow on a specified calendar day a specified number of persons not exceeding 1,000 to disembark from one or more cruise ship(s) with a confirmed reservation for anchorage,’” the brief claims. “In effect, without expressly so providing, the disembarkation ordinance places limitations on and otherwise voids plaintiffs prior town permits for the pier, rendering them without force and effect and seeks to require plaintiff to apply for a new permit, in conformity with the disembarkation ordinance.”
When the town’s ordinance categorizes “Persons” with capitalization, Hamilton argues, the town distinguishes that as a separate category of people “as opposed to all other persons coming within the town by all other means of conveyance.” Much of the complaint’s argument centers around the argument that the disembarkation ordinance doesn’t create a distinction between persons and that it needs to. It also finds fault with the property owner having to be the party responsible for finding a way to count disembarkations and how it (or town officials) can make a distinction between disembarking passengers and crew. A counting method is required by the town.
The limit to 1,000, he argues, on every day despite season (and visitation variances) that had previously been addressed in memorandums of agreement between the town and cruise lines and the town’s policy, make the new ordinance arbitrary and discriminatory, capricious, “and lacks a rational nexus between its purpose and the means it employs in violation of the U.S. Constitution and Maine Constitution.”
A final point centers around what he calls the town’s assertion that violating the disembarkation ordinance’s terms “constitutes a public nuisance.” He argues that “the mere entry of a person within the limits of a municipality also cannot, without more, constitute a public nuisance.”
The Golden Anchor has challenged the ordinance’s definition of “Persons” at the U.S. District Court saying that “Persons” also covered members of the cruise ship crew and that this violates Coast Guard regulations.
“On May 31, 2023, shortly before the July 11-13 bench trial in U.S. District Court on plaintiffs’ complaint, a ‘working group’ composed of town officials, issued a memorandum to the town council advising that it would present ‘proposed rules that would clarify the meaning of the term '“persons” as that term (or the singular of that term) is used in Sections 125- 77(H)(2,)(3) and (4) (town memorandum)….’ The town memorandum explained that the ‘clarification’ was necessary ‘to avoid potential conflict.’” Hamilton continues, “The Working Group never issued any such proposed rules.”
At the beginning of March, the federal district court in Bangor via a decision by Judge Lance Walker, found that most of the plaintiffs’ challenges were not appropriate. It did find that there were issues with how the ordinance applied to crew members as they disembarked. That case has been appealed.
“The district court found that, before its enactment, proponents of the Initiative had struck the word "passengers" wherever it appeared in the proposed legislation and replaced it with "Persons" for the purpose of expanding its reach to encompass all persons disembarking from cruise ships including crew members,” it writes.
OTHER ASPECTS TO THE ARGUMENTS
The Golden Anchor’s complaint goes on to say that between April 2008 and mid-June 2024, the town didn’t “change or attempt to change” the permit terms for the disembarkation use of the pier. Prior to August 5, the town didn’t issue a notice of violation to the Golden Anchor.
In 1998, the suit writes, Bar Harbor created a “master plan to encourage cruise ships to visit Bar Harbor to provide greater economic opportunity and to extend the more active tourist-based season from July and August into the ‘shoulder seasons’ of April through June and from September into November.”
A "Tourism Destination and Management Plan" was created in 2007, which Hamilton writes was to encourage cruise ship visitation. Three years later, the town’s now disbanded cruise ship committee was created. The committee created non-binding findings.
“Every year from 2013-2017, the town council adopted ‘goals and strategies’ to ‘sustain and grow cruise ship visitations.’ Every year from 2010-2020 the town council approved voluntary daily caps for cruise ship visits in the coming cruise ship season,” the complaint writes.
The filing also stresses that the Golden Anchor “made significant investments to acquire the property.” Those improvements were to allow disembarkation “and enable the town to realize its stated goals of encouraging more cruise ship visits and expanding economic opportunities throughout the town and the surrounding area.”
The complaint also argues that the industry brings in millions of local spending and labor income and “helped support 379 local jobs.”
The complaint argues that the notice of violations cites “rules” rather than the disembarkation ordinance itself, that the code enforcement officer didn’t hold an evidentiary hearing on the violation prior to its issuance, and that it relied on the violation report that said both Harbormaster Christopher Wharff and then-CEO Angela Chamberlain witnessed disembarkations onto the dock from the tenders, but does not expressly state how the town staff differentiated passengers from crew.
“By its terms, the violation report confirmed that, without expressly acknowledging it, the disembarkation ordinance purported to place limitations on and otherwise voids and renders a nullity the longstanding prior town permits that the town had issued to plaintiff for the operation of the pier, which town permits, before the town council's adoption of the disembarkation ordinance, the town had never sought to withdraw, void, alter, or otherwise condition or limit,” Hamilton wrote.
Near the end of the complaint, Hamilton writes that while the town exposes the Golden Anchor to “catastrophic fines,” the town’s ordinance “does not provide” the business “with any authority to bar any such ‘excess unauthorized persons” from disembarking into town. He argues that the permit applications are invalid because they include “a written description” that’s been approved by the town’s harbormaster that describes the means of counting, because it violates the town’s charter and is an “invalid exercise of the town council’s authority” as described in the town’s land use ordinance as well as the Constitution’s Due Process Clause.
BOARD OF APPEALS
In September 2024, the Golden Anchor appealed the August notice of violation to the town’s board of appeals. That was initially deferred and then scheduled for December 10. Hamilton submitted a supplemental position letter on November 20, 2024, after a noon deadline that is in the board rules.
The board excludes “the entirety of the applicant’s submission from the record on appeal,” Hamilton wrote.
He counters that the board should only have reset the agenda to that day and “reset the hearing for a later date.”
“Although Section 103(C)(a) of Chapter 125, a law duly approved by Bar Harbor voters at a town meeting, provides without limitation that an appellant shall have 20 full days to file its pre-hearing materials with the BOA, the BOA issued its own rule shortening the period to 19 full days and a partial 20th day by requiring the submission of appellant's materials by noon on the twentieth day,” the brief reads.
Hamilton argues that the board reversed the sequence of filings for the appeal. This allowed the town to file its appeal first. Private citizen Charles Sidman, a lead petitioner of the citizens’ initiative that caused the cruise ship changes had asked to have special status in the appeal, but that was not granted.
The town and Sidman then rebutted Hamilton’s letter, which was not in the board of appeal’s filings. Instead, the position letter was submitted as rebuttal evidence.
Then, at the December 10 meeting of the board, the Golden Anchor challenged Chair Anna Durand and Vice Chair Cara Ryan’s participation, saying that they had “disqualifying conflict of interest.” Both women were recused. The brief argues that since both Durand and Ryan participated in the rejection of that position letter, the procedure was unlawful and impacted by bias and error.
The Bar Harbor Story has reached out to Bar Harbor’s attorney Stephen Wagner and Town Manager James Smith, but has not received a reply. If we do, we will update the story.
TO READ THE COMPLAINT
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There's an old legal aphorism that goes, "If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table. I sure hope the table gives out soon.