Is Bar Harbor Allowed to Disembark Cruise Ships at Ells Pier?
Charles Sidman doesn't think so and files an appeal of the action
BAR HARBOR—Charles Sidman, a local businessman, has appealed the town of Bar Harbor’s actions again. It is still related to cruise ships. However, this time it’s about smaller cruise lines tendering at the town’s Ell’s Pier in downtown Bar Harbor.
“While I have always and continue to support the tendering or docking of small cruise ships at town property, even more important in my mind is that this, and all other official town actions, be done observantly and compliantly with town rules and regulations,” Sidman wrote in an email. “‘Rule of Law’ is a key issue today from the national level down to our small local arena, and I have been telling town officials about this problem and suggesting possible solutions for many months now, to their continuing utter denial and dismissal. That it has come to another legal tussle is thus completely on them.”
Earlier this year, the town council approved the tendering of American Cruise Line ships on the town pier. These smaller ships are American flagged and do not require customs operations and security procedures that international flagged ships do. On April 9, the town’s code enforcement officer issued a permit to the town to have a disembarkation facility at the pier it owns.
In November 2024, voters rejected a town-council-organized proposal that would have relaxed the cruise ship limits that were voted in back in 2022 and that created a 1,000-passenger daily disembarkation cap. The 2024 vote (1776-1713) survived a recount as well. The original lawsuit that the cap was unconstitutional has continued and is currently awaiting a decision in a federal appeals court.
“The town has received notice of a new appeal challenging the recent issuance of a disembarkation permit for the town pier. The permit was issued in accordance with the land use ordinance and longstanding zoning practices,” said Council Chair Val Peacock. “This latest filing is part of a series of ongoing legal challenges related to the implementation of the voter-approved cruise ship disembarkation ordinance. The Town Council will review the appeal and determine an appropriate course of action following a full review of the legal and procedural record.”
The pier has been previously used as a disembarkation site.
This week, Sidman’s attorney, Robert Papazian, filed for an administrative appeal of the town’s code enforcement officer’s and harbormaster’s allowing cruise ship disembarkation at the pier, which is in the town’s “Shoreland General Development District.” He argues that the town does not allow cruise ship disembarkation in those uses.
Instead, he argues the only district which does allow this use, which he says is only captured by the town’s definition of “passenger terminal” is in Bar Harbor’s “Shoreland Maritime Activities District.”
The uses of property in different portions (zones) of the town are determined by the town’s land use ordinance. Each zone has a name. Each zone has “allowable uses.”
“The only district that does allow passenger terminals is the ‘Shoreland Maritime Activities District.’ The operation of a passenger terminal within the ‘Shoreland Maritime Activities District’ requires a site plan review. The ‘Shoreland Maritime Activities District’ also distinguishes between other ‘functionally waterdependent uses, including permanent piers, wharfs and docks; commercial boat yard; commercial fish pier; passenger terminal; ferry terminal; marina; [and] services,’” Attorney Robert Papazian, of Gebhardt and Kiefer of New Jersey, writes.
Papazian then argues, “In contrast, among the allowable activities and structures with site plan approval within the ‘Shoreland General Development I District’ are ‘permanent pier, dock, wharf, [and] breakwater.’”
The cost of the appeal is $1,500. Sidman is requesting that the board vacate the permit and reverse any finding made by the CEO or the harbormaster that cruise ship disembarkation is an allowable use in the district. He also requests a return of the fee.
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Correction and update: In one of the instances of writing Mr. Papazian’s last name, we added an r. Many apologies. It was corrected at 12:03, May 11. Also, Mr. Sidman, does not feel the proposed changes would have been a slight relaxation of the ordinance. We felt that it is a tripling, as he says, on the daily limits (it would have allowed approximately 3,000 a day), but when the “cruise free days” are counted in, it becomes a slight relaxation of the ordinance. However, we've taken out the adverb.
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H. L. Mencken once observed “Democracy is the theory that the common people know what they want and deserve to get it good and hard”.
Likely he had someone like Mr. Sidman in mind…….
A basic rule of statutory construction is that the language of an ordinance should be interpreted so as to avoid an absurd result. The Shoreland General Development I District permits a "permanent pier, dock, wharf, [and] breakwater." It would be absurd to interpret that language as permitting the structure but not permitting the use of the structure for its intended and normal purposes, including embarking and disembarking passengers. As far as I'm aware, there will be no additional terminal, building or structure. That is all the Town has approved here, and the Town's decision should be affirmed in all respects.