Joint Town Council and Planning Board Cruise Ship Workshop Next Week
JUN 08, 2024
PORTLAND—Charles Sidman’s April law suit against the town of Bar Harbor has been amended according to court documents filed in the Business and Commercial Court in Portland on June 6. In one of those trio of documents filed, Sidman has also objected to the town’s motion to dismiss the case.
The complaint names both the town and all its current councilors. Two of those councilors, Gary Friedmann and Joe Minutolo, are running for re-election. Sidman is also running for one of the two available seats on the Bar Harbor Town Council. That election is June 11. Michael Boland, Nina St.Germain, and Nathan Young are also running.
Sidman’s amended complaint was approved on June 6. The defendants have ten days to respond.
The amended complaint alleges that the Town Council unlawfully interfered with the administration of the town’s land use ordinance pertaining to the new cruise ship rules. The rules are part of a citizen’s initiative that caps daily cruise ship disembarkations at 1,000 a day. They were passed by voters in November 2022, but have not yet been fully enacted.
In federal court, some businesses, the Association to Preserve and Protect Local Livelihoods (APPLL), and a pilots’ association sued the town, saying that the disembarkation limits caused harm to their businesses as well as alleging the changes were unconstitutional. Sidman applied to be a defendant intervenor in that suit and created a GoFundMe to help pay for legal fees. The town won that case, though the decision is now being appealed in federal court.
Though still about cruise ship disembarkation rules in the town ordinance, this case is an entirely different lawsuit, in state and not federal court, and focuses around a March statement by the Council about when and how the upcoming cruise ship season, which is now currently underway, will be impacted after the federal court’s February 29 decision. The cruise ship season began in May. It ends in October.
According to the March statement, reservations made after November 8, 2022 would be subject to the 1,000-passenger daily disembarkation limit. So, the 2024 season has a mix of pre-existing reservations as well as limits based on the citizens’ initiative effective November 9, 2022.
CURRENT ACTIONS
In that March statement, the councilors “directed the town manager to prepare draft rules for Council consideration necessary to ensure the ordinance may be implemented efficiently and in compliance with the (federal) court’s decision.”
They asked that those rules be presented as soon as possible. Those rules, they determined, would go before a public hearing and then be enacted. A public hearing on some rule changes is scheduled for June 18.
According to Town Manger James Smith’s affidavit, “On November 17, 2023, and on May 3, 2024, the town released proposed draft rules, ordinances, and procedures implementing the ordinance and otherwise clarifying the authority of the Town’s harbor master (the ‘Proposed Rules’).”
On June 13, the Town Council and Planning Board will meet in an effort to discuss any possible amendments relating to the cruise ships within the town’s land use ordinance to go before voters in November. The final form of any such amendment has not been determined.
That meeting is open to the public.
“The Town Council has continually expressed their commitment to exercising home-rule authority to effectively regulate the disembarkation of cruise ship passengers in the Town of Bar Harbor, and to reduce the number of passengers disembarking these cruise ships,” James Smith said on Friday.
SIDMAN’S SUIT
Sidman’s amended complaint alleges that the Town Council’s March statement was not voted on and that the Council doesn’t have “authority to substantively modify, suspend, or nullify provisions of the Code,” nor authority about how the town’s ordinances are to be enforced. It argues that the “Council’s resolution usurps the CEO’s (code enforcement officer) statutory role of enforcement and goes well beyond any act of prosecutorial discretion” and calls it a “pretext to clothe the Town Council’s unlawful attempt to render void, amend, or veto the ordinance.”
The suit also calls for declaratory relief, asking that the court “declare that the town and Town Council are prohibited from interfering with the duties of the CEO, harbormaster, and other town officials, which included enforcement of the ordinance.”
It argues that the Council’s March statement “acts as an illegal legislative veto, suspension, and/or amendment” of the ordinance. It asks that the Court make the town revoke the March statement and order the town to not direct the town’s employees.
Sidman, his lawyers argue, “will suffer irreparable harm if an injunction is not granted because the Town Council’s resolution will result in his inability to use and enjoy his property, have an adverse impact on his business, and serve to nullify his efforts to petition the government and pass the ordinance.”
Another count in the filings states that the Council’s actions deprive voters of their rights and disenfranchises them.
TOWN’S ARGUMENTS FOR DISMISSAL
Bar Harbor’s attorneys have argued that Sidman lacks standing to challenge the public statement, that his “claims are not ripe for judicial resolution,” and that the public statement at issue that the council made on March 6 is not appealable under Rule 80B, and there is no true “genuine controversy” between the council and Sidman, and that he also fails to state a claim under section 1983, which requires showing a “deprivation of a right secured by federal law, statutory or constitutional, and that the deprivation was achieved under color of state law.”
A press release, the town’s lawyers argued, does not deprive him of a right. Sidman’s lawyers argued that the press release was a resolution that does.
The lawyers for the town also argued that there is “no viable cause of action to which his request for injunctive relief could attach.” The documents also argued that Sidman’s claim against the town and the individual councilors is duplicative.
BACKGROUND
In April, the town had issued a press statement, which read said it had been working with Sidman to implement the rules necessary to enforce the ordinance. It also said that legal actions related to the initiative have cost the town $300,000 and that the current litigation diverted the town’s attention from other important town issues.
In May the Royal Caribbean cruise line told town officials, “Our current itineraries for 2024 were put on sale to the public in late 2022 and did not feature Bar Harbor given the uncertainty of our ability to visit the port. We had a few calls that were previously reserved, and we remained hopeful that the situation would be clarified in enough time for us to add Bar Harbor back into our itineraries. Unfortunately, these changes came many months too late and we will be continuing with our published itineraries that do not include the destination.”
Town Council Chair Valerie Peacock has said that the Council has always thought there needed to be a reduction in visitation. She said that the problem is how to “actually implement this ordinance” because of how it is written and “there’s some challenges with that.”
“Let’s start talking about a better way to do this that’s going to clear this path of craziness we have in front of us around litigation.” She added, “We’ve learned a lot about this in the past two years and there might be a better way through.”
In 2021, a town survey that elicited almost 1,400 respondents, found that of those respondents, 55 percent thought the overall impact of cruise ships was negative. The same percentage believed that the ships detract from Bar Harbor’s image as a tourism destination connected with Acadia National Park.
The town’s new plan was managing cruise ship arrivals through memorandums of agreement between the town and the cruise lines. The most recent agreements had set daily limits of 3,500 to 3,800 passengers and also monthly limits, which town officials believed would make cruise-free days each month. The limits changed depending on the season. There are no official cruise-free days in the passed ordinance though some have argued that by decreasing the limits to 1,000 a day, there will be no cruise ships visiting.
In 2023, the town began memoranda of agreements with the cruise lines and that decreased the schedule for the 2023 season to 134 visiting ships with a total lower berth capacity of 258,157.
By 2024’s season, that number had decreased to 100 with 181,926. And for 2025, the requests have been approved for 18 ships with 57,482 passengers.
Recent court filings in the federal appeal show monetary losses for both the businesses directly involved and the pilots who rely on the cruise ships as part of its pilotage system. Those losses for the pilots’ association are over $500,000 because of 2024 cancellations. The filings claim that Walsh’s businesses have lost a combined total of over $920,000 just with the Royal Caribbean 2024 cancellations.
Sidman had also appealed the town’s March statement to the town’s Appeals Board, which found it did not have jurisdiction. He also has asked the Appeals Board to reconsider its decision.
THE MARCH STATEMENT IN FULL
“The Bar Harbor Town Council issued the following statement at a special meeting Wednesday, March 6, 2024.
“The Town Council is pleased the United States District Court affirmed what we have known to be true: The Town of Bar Harbor has the authority, under Home Rule, to enact ordinances to limit the volume of cruise ship visitations in order to ensure the Town’s quality of life is preserved.
“While it is no secret that many of us on this Council have had concerns with some aspects of the cruise ship ordinance proposed by a citizen initiative, the fact remains that this initiative was voted on and approved at Town Meeting and is now the law of the land. This Council will now see to its immediate implementation and enforcement, in a way that is lawful, fair, and fiscally responsible.
“Pending rule making, enforcement will begin immediately. This Council has already directed the Harbor Master to cancel, or reject, requests for reservations made after the day of the vote for all ships with lower berth capacities greater than 1,000 passengers. The disembarkation of passengers of cruise ships with reservations for the 2024 season that are made and accepted after this date are subject to the current Ordinance. However, the Council will honor reservations made before the town voted. Passengers from these 2024 ships will not be subject to the disembarkation limits of the Ordinance.
“Together with the reductions already achieved by implementing the Memorandum of Agreement between the cruise lines and the Town our community will experience a 50% reduction from peak year cruise ship visitation. This will be a good opportunity for us all to experience the impact of such a reduction on our quality of life and Town operations.
“It is the position of this Council that this is the fairest and most legally responsible approach, based upon careful consideration of costs and risks associated with enforcement.
“We disagree with the demands from some to delay all enforcement until any appeal of the court decision is resolved which would result in no additional reductions. We also disagree with the demands from others to cancel all reservations made prior to the adoption of the Ordinance, which would result in at least an 80% reduction.
“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.
“In reviewing the 2025 season, the Council will ensure that the disembarkation of any cruise lines with reservations made and accepted after March 17, 2022, will be subject to the Ordinance. The Town is prepared to go to court to obtain fines and injunctive relief against any landowner that exceeds the disembarkation limits, and any party that disobeys the orders of the Harbor Master.
“The Council hereby directs the Town Manager to prepare draft rules for Council consideration necessary to ensure the Ordinance may be implemented efficiently, and in compliance with the Court’s decision. This includes updating the Cruise Ship Standard Operating Procedures to govern shoreside operations and any changes made to confirmed and honored reservations.
“The Town Manager shall present these draft rules to the Council as soon as possible, and these draft rules will be subject to a public hearing and a final enactment by the Town Council.
“Additionally, the Town Manager shall recommend any additional ordinance amendments or polices necessary to efficiently and effectively manage cruise ship reservations and disembarkations. Any substantive amendments to the Land Use Ordinance will require a Town Meeting vote.
“The Council remains committed to listening to all individuals, parties, and stakeholders to ensure that the regulation of cruise ship tourism works for the entire community.
“In conclusion, we would like to give special thanks to the Town Attorney Stephen Wagner as well as to Jonathan Hunter and the Attorneys at Rudman Winchell for their tireless advocacy for the Town of Bar Harbor in this matter.”
LINKS TO LEARN MORE
THE JUNE 6 SIDMAN FILINGS:
OTHER FILINGS:
*2024 06 06 Sidman Oppn To Town Mtd
231KB ∙ PDF file
*2024 06 06(b) Sidman Amended Complaint
207KB ∙ PDF file
*2024 06 06(b) Sidman Amended Complaint
207KB ∙ PDF file
Order approving amended complaint.
Sidman’s opposition for the town’s motion to dismiss
Amended complaint for review of governmental action with independent claims
RECENT FEDERAL CASE DOCUMENTS
For the federal case, the Sidman’s opposition for APPLL et. al’s request for an injunction.
The Federal Court of Appeal’s denial of injunction
Town and Sidman’s amended opposition for a joint motion of injunction pending appeal
OTHER RELATED ARTICLES:
Appeals Board Finds It Has No Jurisdiction Over Charles Sidman’s Appeal
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MAY 15
Updated: Sidman Sues Council
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APR 3
A Parallel Track, A Return To the Public:
Court Papers Claim Over a Million Revenue Lost in 2024 Season So Far as Businesses Again Ask for a Pause
UPDATED: Bar Harbor Cancels Most Cruise Ships in 2025
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CLARIFICATION/CORRECTION: We’ve updated this story on June 9 and eradicated a paragraph in it because it wasn’t reading correctly and unnecessary. That paragraph was about what and when cruise ships would be allowed. Apologies.
More simplified:
Small ship reservations are still being taken.
All reservations after the November 2022 vote over the limit were cancelled.
Not all reservations made before the November voter but after the March date in the ordinance were cancelled. According to Town Councilor Kyle Shank, “We did not cancel every reservation made BEFORE the vote, but AFTER the March ‘effective date; that’s buried in the ordinance.”
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