Updated: Sidman Sues Council
Lead petitioner suing individual councilors and also appealing their decision
BAR HARBOR—The Bar Harbor Town Council had an emergency executive session on Wednesday night to deal with “legal counsel pursuant to 1 MRS 405(6)(E) to discuss litigation concerning enforcement of cruise ship ordinance.“
According to Town Manager James Smith, there was no action after the session.
The session came after a Mount Desert Islander article about how Charles Sidman, lead petitioner in the citizens’ initiative for cruise ship disembarkation limits said that he was filing an administrative appeal within the town “to overturn a March 6 decision by the Town Council to keep the upcoming season intact.”
Sidman will also go to the town’s Board of Appeals. He is currently running for Town Council and has turned in his papers.
For this season, the Council had decided to allow pre-existing cruise ships to continue their visits to Bar Harbor without abiding by the limits which were upheld by Judge Lance Walker. On Friday, APPLL (a group of local businesses and others) and the Penobscot Bay Pilot’s Association filed a notice to appeal Walker’s decision.
However, according to a court document filed in Hancock County Superior Court, he is also suing individual councilors.
BAR HARBOR’S RESPONSE
The town issued a press release Thursday vowing “to defend the citizens of Bar Harbor against two recent actions involving control of cruise ship impacts in the community.”
The release reads,
“Although the Town prevailed in a federal lawsuit filed by a confederation of businesses (APPLL) opposed to a daily cap on the number of passengers allowed to disembark, that group filed an appeal of the judge’s decision in March.
“On Tuesday, Charles Sidman, a proponent of the citizen’s initiative, filed an administrative appeal and a lawsuit in Superior Court against the town council and against members of the council individually.
“Following the Federal Court win, the council, recognizing that local regulations were insufficient for the proper enforcement of the ordinance, announced that reservation requests received after the November 2022 vote should not be accepted. This means that around 92 visits have been excluded from the 2024 season and an additional 80 were not accepted for the 2025 season."
“Immediately prior to Charles Sidman’s filing, the Town had been working with Sidman and his attorneys moving full speed ahead to draft and implement the rules necessary to enforce the Ordinance now upheld by the courts.
“‘While the appeal by APPLL, though disappointing, was not unexpected, Mr. Sidman’s unwarranted and spurious action only serves to demonstrate that neither side in this issue has the best interests of the people of the Town of Bar Harbor at heart,’ said Council Chair Val Peacock. ‘We will defend against both litigious parties vigorously as we work to implement the ordinance and continue to engage in dialogue with the community on ways to chart the proper course on this issue.’
“So far, legal actions related to Mr. Sidman’s cruise ship initiative have cost the Town more than $300,000 in legal fees.
“‘It’s unfortunate that, especially in an extremely tight budget year, any individual or group would pursue frivolous litigation over healthy political dialogue. This only serves to divert attention and resources from other important issues while unfairly adding to the tax burden of their friends and neighbors,’ Peacock said.
COUNCILOR SHANK’S STATEMENT
On Facebook Wednesday evening, Councilor Kyle Shank wrote, “It’s also worth noting that Mr. Sidman is suing the Town Council, as well as all of us individually in our roles as councilors.
“After the court judgement in March, we’ve been working to craft regulations to govern cruise ship disembarkations in line with the ordinance—a process in which Mr. Sidman and his attorneys have been active participants. And what does he do in the middle of this work? Sue us, not just as a body but as individuals, simply because we prioritized prudence and good judgement as the elected officials of our community over his demands. To avoid being sued by one party, we apparently only managed to invite suit from another—our own partner in the process, no less.
“This is what I believe will truly tear our community apart: not cruise ships, not tourism, but our inability to view sensibility as a good thing, to see compromise as a virtue, and to solve our problems with dialogue and politics instead of litigation that, ultimately, costs taxpayers not just money, but the ability for their elected officials and town staff to focus on other issues that are even more important to our community.”
BACKGROUND
There are 34 cruise ships scheduled for 2024 that have less than 1,000 passengers. There are 68 ships with over 1,000 passengers according to figures from January 2024.
The rationale for that choice is also in the statement, which Town Council Chair Valerie Peacock read to councilors, some staff, and just over a dozen people attending at a March 6 special meeting.
“Most of the ships in question are scheduled to arrive in less than 90 days. Cancelling the bulk of the 2024 season now would be fundamentally unfair, would potentially expose the Town to additional legal liabilities, and would have a drastic fiscal impact on an already strained and nearly complete municipal budget,” the statement read.
Reservations made after November 8, 2022 will be subject to the 1,000 passenger disembarkation limit. So, the 2024 season will have a mix of pre-existing reservations and limits based on the citizens initiative effective November 9, 2022.
Early on in the statement, it says, “This council will now see to its immediate implementation and enforcement in a way that is lawful, fair, and fiscally responsible.”
Last week, APPLL and the Penobscot Bay Pilot’s Association filed a notice that they both intend to appeal the federal court decision upholding the limits.
COUNCILOR HOCHMAN’S STATEMENT
On Thursday morning, Councilor Matthew Hochman issued a statement on social media, writing, “As many of you may have read, Charlie Sidman has decided to not only sue the town and the council as a whole, but each of us as individual councilors, He has taken this extreme action because we did not do exactly what he wanted, exactly when he wanted, The town has been working closely with Mr. Sidman and his attorneys since we won the lawsuit to promulgate rules related to disembarkation of cruise ship passengers, yet instead of continuing to work collaboratively with the town, Mr. Sidman has chosen once again to waste taxpayer money by attempting to govern via costly litigation.
“The 2024 cruise season is less than a month away, it is my personal belief that canceling those few ships that were booked during the petition's retroactivity period would lead to even more litigation as passengers have already paid for tickets on those ships. Even with those ships, we will see somewhere around 50% fewer ships in 2024, and 90% fewer in 2025 and on. When viewed through that lens, I felt the risk of litigation and further burdening our taxpayers outweighed the benefits of canceling those ships.
“I believe this lawsuit is frivolous and does nothing but waste time and energy that could better be spent working on the serious issues facing the town, instead of working on housing, tax relief, sustainable tourism, climate mitigation, and infrastructure, we will once again be wasting our time defending a lawsuit.
“I also believe this casts serious doubt on Mr. Sidman's ability to serve on the town council, a position he is currently running for, Regardless of how the election turns out, if Mr. Sidman were to be elected, he would be serving with at least five people who he is in the process of personally suing, I do not believe this is a workable relationship.
“I will end by saying this is my opinion and does not necessarily reflect that of the Town of Bar Harbor, its staff, or other individual councilors.
“If you have any questions, please email me at mhochman@barharbormaine.gov.”
CHARLES SIDMAN’S STATEMENT:
Charles Sidman also released a statement to the press on Thursday. It is below in its entirety:
“This statement amplifies the attached Appeals Board Application and Lawsuit to the State of Maine Superior Court (documents that pretty clearly speak for themselves in expressing the issues involved.) Nonetheless, the additional comments below may be useful.
“First of all, I want to express abiding respect for (and affection for many of) my fellow townspeople who hold opinions different from mine on these matters. I do not impugn their sincerity or good intentions, merely the wisdom and consequences of the path(s) they favor. I will continue to express and act according to my views without descending to the hate filled commentary and personal cancellation that some are spreading. In this regard, it should be known that the type of legal complaint we are making requires the naming of town councilors as defendants individually in their official capacities. There is no intent to render them personally liable for any damages, even though they are, and should be acting as, fiduciaries for a $3 billion dollar enterprise, $25-30 million dollar annual operating budget and the lives and well-being of approximately 5,000 fellow citizens.
“The overriding problems now are the multiple instances and apparently unanimous legal presumption and overreach of the current Town Council, issues whose importance vastly dwarfs that of the nominal cruise ship issue. It is now a Matter of Principle. Legal misbehavior is appropriately remedied by recourse to the legal system. Our Council significantly overreached by:
1. “Rewriting a citizen-passed Land Use Ordinance over which it has no authority (ignoring the specific 3/17/22 effectiveness date in favor of their preferred later 11/8/22, thus expanding the number of 2024-allowed ships almost three-fold),
2. “Issuing their 3/6/24 decision without the required publicly recorded vote,
3. “Directing town officials how to function (an order to delay and ignore the Ordinance for another season) without legal authority to do so. (Only the Town Manager can “direct” town employees.)
4. “Obfuscating and not revealing clearly public domain information (the complete list of cruise ships booked as of 3/17/22, referenced in and essential to the instant Ordinance.)
5. “Continuing their past pattern of false and/or misleading statements (ex. how many, but certainly not “most”, of the non-grandfathered cruise ships “will be arriving within 90 days”?)
6. “Misstating and justifying their own negligence over essentially 18 months by not creating the necessary rules and procedures for implementing the Ordinance for the 2024 season (even citing a supposed “partnership” with the lead petitioner.) His detailed public and written advice over almost this entire interval, and more recently actual attorney-generated forms and procedures for implementation, have elicited little feedback or bidirectional collaboration.
“In summary, I believe that our Town Council has gone rogue and dysfunctional (in other regards as well, to be addressed elsewhere.) If they are allowed to behave thus, from within their self-perceived bubble of superior wisdom and extralegal authority, our bedrock Rule of Law is gone. One might then as well support unrestrained strongmen such as a certain former president. If we have already gone too far to resolve these issues without “tearing the community apart” (as one Councilor suggested on Facebook), then matters have already passed this point and must be recovered. I continue to believe that the majority of our citizens are smarter than the misinformers claim, and can understand and will uphold what is at stake.”
UPDATES:
This has been updated to include the brief, which is below. And to clarify a sentence above the photo. It adds another sentence and a statement by Councilor Hochman and Town Manager James Smith. It has also been updated with the application for administrative appeal documents and a quick link to the Town Council statements.
On Thursday afternoon the town and Charles Sidman both issued statements, which are now included here.
Wait. Did I miss the part where Town Councilors castigated former Town Manager Sutherland and APPL for "tearing apart our community, refusing to solve our problems with dialogue and politics instead of litigation, costing money, and keeping town staff from focusing on other issues that are even more important to our community"?
Right. Never happened.
We used the power of the ballot box. And see where that got us with the Town Council.
After years of getting nowhere with cruise ship booster Town Councilors/Managers, Bar Harbor residents turned to a Citizens Initiative to propose a return to more balanced and sustainable cruise ship tourism numbers. Former Town Manager Sutherland and the Town Council used town funds to campaign against the Citizens Initiative. Nevertheless, the initiative got on the ballot and won support from the majority of voters. Then the Town Manager and Town Council refused to enforce the law and worked with opponents of the law to overturn it. Including colluding with opponents on a suit against the town. Enter AAPL by name. The Town Lawyer instructed by the Town Council worked with APPL to come to an agreement acceptable to opponents of the initiative. To show his sincerely sensible allegiance to APPL, the Town Manager also sensibly surreptitiously added many many ships to a previously approved schedule. Wicked Town Manager Sutherland. However, not too smart Town Manager Sutherland - got caught on tape telling APPL how to get around the Town Lawyer's strategy so they could get all of everything they wanted. Town voters be damned. Sensibly, the Town Council disappeared the Town Manager overnight to spend more time with his family. Sensibly with a platinum parachute of 6 months pay off and then some - a Non Disclosure Agreement and their word to let him double dip on unemployment insurance. Because it was mutually sensible that no one spilled the beans on where the bodies were buried. Are you with me so far? From documents submitted to the court, it became clear to the judge that the Town Council was neither sensibly nor sincerely defending the rights of Bar Harbor voters. And allowed an intervenor on behalf of the town to participate in the proceedings. Enter Charles Sidman by name. Despite the sensible best/worst efforts of the Town Councilors to give APPL a win, the judge decided the law was with the voters. Yikes!
How'd that happen? But the sensible Town Council decided the sensible thing to do was pretend *that* never happened and go ahead with the sensibly and surreptitiously packed schedule of cruise ship visits. In hopes APPL will win their appeal. And it would be back to cruise ship business as usual. And when someone says wait what, what the what, not so fast. The Town Council starts sharpening their knives and waggling their pitchforked tongues. Because in Bar Harbor, the one thing it is definitely not sensible to do is ... stand up for the constitutional rights of residents. It doesn't comport with our island ways.