Marathon Appeals Board Meeting Leads to Two Recusals and a Continuance
Meeting focused on Golden Anchor's appeal of cruise ship tendering notice of violation
The Bar Harbor Story is generously sponsored by Swan Agency Real Estate.
BAR HARBOR—Approximately six hours was not enough, December 10, for the Bar Harbor Appeals Board to determine the fate of the Golden Anchor L.C.’s appeal of its notice of violations.
“We did witness the disembarkation of passengers at the site,” Bar Harbor Code Enforcement Officer Angela Chamberlain said. She said that the people were in civilian clothing and some were getting on Oli’s Trolley.
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.
In a marathon meeting that lasted from 4:30 p.m. until well past 10 p.m., three members of the Bar Harbor Appeals Board listened to arguments from four lawyers about a notice of violation that had been issued earlier this year.
The meeting is not over and a decision has not been made about the appeal.
“I’d like to thank all the participants for bearing with me. This was totally unexpected that I would chair this. I resisted doing that especially because it was so difficult to do from zoom,” acting Chair Michael Siklosi said.
The Bar Harbor Appeals Board unanimously motioned to continue the Golden Anchor L.C.’s appeal until December 18 at 9 a.m.
In mid November, the Bar Harbor Town Council agreed to seek enforcement in the courts against 55 West Street, Golden Anchor, L.C., which is where cruise ships tender passengers visiting Mount Desert Island.
Under the new disembarkation rules voted in by citizens in 2022 and upheld by a narrow margin this November, inspiring a recount that upheld the vote November 23, the town says that the business is required to apply for a permit to allow disembarkation of cruise ship passengers. The rules state that 1,000 cruise ship passengers can disembark each day before fees occur. The business has argued that it had a pre-existing use.
The notice of violation issued by the town is from August 5, 2024. The application for administrative appeal was filed Wednesday, September 4, 2024. That 18-day delay was mentioned by Golden Anchor lawyers P. Andrew Hamilton and Timothy Woodcock of Eaton Peabody.
In the 96-page administrative appeal, Hamilton argues that the company already has an approved site plan and a Wharves and Weirs Act permit that had been issued by the town. Therefore, he argues, the company should not be required to file for new permits required under the new cruise ship disembarkation rules. During the meeting on December 10, Hamilton also mentioned that he did not believe that the board had jurisdiction to hear the appeal. The board determined unanimously that it did.
The board denied the inclusion of Hamilton’s supplemental material, November 26, because he’d missed a filing deadline by a couple of hours.
The December 10 meeting began with a duo of recusals from the board’s chair and vice chair and ended with the continuance of the meeting. In between, the remaining three board members voted that they did have jurisdiction to hear the appeal (the Golden Anchor had argued that it did not) and that Charles Sidman should not have standing in the case, and should not be involved in the hearing except as a member of the public, which is what the Maine court system for its own case decided as the Golden Anchor’s appeal is moving on that parallel track.
“I think the best move for this board is to stay these proceedings,” Hamilton said and let the court system decide the fate of the appeal. He emphasized that he did not think Sidman should be involved in the appeal at the appeals board level either.
The board did not stay the proceedings. It decided that Sidman should not be involved in the enforcement aspect that the appeal centers on as an interested party, but just as a member of the public.
Because Sidman was not recognized as an interested party, he couldn’t add additional documentary evidence or cross examine parties involved. The board didn’t perceive of him as an abutter in the case and said that he didn’t have a particularized injury because of the notice of violation.
Much of the meeting played out like a trial, with attorneys interviewing and asking questions of the town’s code enforcement officer, Angela Chamberlain, who issued the notice of violation to the company as well as Eben Salvatore, who has worked for Ocean Properties for approximately three decades. Both Chamberlain and Salvatore sat at long tables positioned to face the appeals board members, who sat above them at the town council’s dais.
Stephen Wagner of Rudman Winchell represented Chamberlain. Daniel Pileggi of Acadia Law Group represented the board.
Attorney Robert Papazian, spoke on behalf of Sidman, who has been involved in multiple lawsuits concerning the town’s enforcement and defense of the 2022-voter-approved daily disembarkation limits for cruise ships. Sidman was a lead petitioner on the citizens’ initiative calling for those changes.
RECUSALS
At the beginning of the meeting, the board’s highest officers recused themselves and board members agreed. After the board tweaked minutes from its last meetings, Vice Chair Cara Ryan recused herself.
“I’ve been told that an ethics violation has been filed by someone,” Ryan said.
The board voted to accept her recusal.
An ethics violation can be filed with the town clerk and must be considered confidential unless a person is found in violation of town code. Then, the town clerk must notify the public within five business days. The town’s ethics commission includes the chair and vice chair of the town council (Val Peacock, Gary Friedmann), superintending school committee (Alexandra Simis and Marie Yarborough), warrant committee (Chris Smith, Meagan Kelly), and warrant committee secretary (Louise Lopez). If they cannot serve, their respective board will appoint a replacement.
Chair Anna Durand said she did not have a financial interest, but in 2018 was quoted in the NYT about needing a balance of cruise ships and being against the ferry terminal.
“It is possible that I have an appearance of bias,” Durand said.
Pileggi said that if Durand felt like she couldn’t conduct the meeting fairly, she should recuse herself. One comment may not necessarily make someone unfair, he said, referencing a New York Times article that Durand was quoted in.
However, Hamilton said there was a more specific set of items that had come to their attention. Hamilton pulled out Tab E from the rebuttal materials that were not originally allowed because of a missed deadline. Durand, along with Sidman, was a signatory of the Global Cruise Activist Network (GCAN) letter headlined “Stop Supporting the Toxic Cruise Industry” July 31, 2023.
GCAN is a global network that says on its webpage that it demands “no return to business as usual” for the cruise industry.
“I did sign that letter and right after that, I told them to take me off their mailing list,” Durand said. “Whatever work they are doing, I realized I would not be part of it.”
“We think that it is really important . . . to have a proceeding that is free of bias,” Hamilton said.
Hamilton also mentioned the Cider Press hand-out, which he said Durand was involved in, and was distributed at Fourth of July events. The 2023 satirical missive lampooned the town government, news sources, local business people, and the pro-cruise-ship Association to Protect and Preserve Local Livelihoods.
“The community is split. I don’t think you have a split opinion,” Hamilton said about Durand’s opinion about cruise ships. He said that Durand is clearly an activist.
Wagner said the town takes no position on the recusal and deferred to the board about whether Durand had a bias. He added that views on cruise ships weren’t a simple dichotomy but had complexity.
Durand said her position has evolved about the ordinance and its rules, specifically in regards to the Town Council bringing forward Chapter 50, an alternative plan of cruise ship restrictions that did not deal with permitting or disembarkation caps but instead limited the number of cruise ships via memorandums of understanding.
“I do have an opinion about cruise ships. I don’t have any opinion whatsoever about legal nonconformities or illegal nonconformities,” Durand said. She said she doesn’t think she has difficulty applying the town’s LUO. However, she decided that the appearance of bias was important and instead recused herself.
“I certainly have an attitude about cruise ships. I think they are harming the climate, warming the ocean, and harming fisherman,” Durand said of cruise ships. “I don’t want the board of appeals to have a sense of bias.”
Durand and Ryan sat in the room for portions of the meeting. Town councilors also came and went. Sidman was also present. Both members recused in the December 10 meeting were involved in that previous November meeting.
SMALLER BOARD
Because Durand and Ryan were recused, the board consisted of new member Claire Fox, Secretary Robert Webber, and associate member Michael Siklosi. Siklosi, who was attending via Zoom, became chair.
Because there are only three board members, all decisions have to be unanimous. Failure to get to unanimity is a de-facto denial of the appeal, Pileggi said.
Disclosures: Shaun Farrar of the Bar Harbor Story (and my husband) is on the town’s Warrant Committee as is Eben Salvatore. The Cider Press has called the Bar Harbor Story “milquetoast,” which means “one who has a meek, timid, unassertive nature.”
LINKS TO LEARN MORE
To read the appeals board packet
The appeals board page itself.
Application Materials:
- Appeal application and supporting materials (submitted on 09/05/2024)
- Letter regarding late submission from appellant (submitted on 11/25/2024)
- Letter responding to late submission from Town of Bar Harbor Attorney (Submitted on 11/26/2024)
- Letter from an Interested Party responding to the late submission (Submitted on 11/26/2024)
- Supplemental submission from Town of Bar Harbor Attorney (Submitted 12/03/2024)
- Supplemental submission from an Interested Party (Submitted 12/03/2024)
- Letter submitted by the appellant (submitted 12/9/2024)
Golden Anchor Files Appeal of Cruise Ship Violation Notice
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Bar Harbor Will Seek Enforcement Action Against Dock Owners
Nov 20
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Thanks for sharing the Cider Press. It very well captures the nonsense of the whole mess.