Ex-appeals board attorney: Cruise ship contracts give industry parity it never had

OTHER NEWS: Tremont campground seeks permit for half of approved units; Leonard Leo is big donor in Maine's legislative races

BAR HARBOR, Oct. 20, 204 - The former attorney for the town’s appeals board has come forward to warn that the town’s proposed contracts with cruise lines which it is supposed to regulate will only give the industry “equal footing” and compromise the town’s authority.

In an unsolicited comment on my blog last week, retired attorney Philip Worden, wrote, “It might be helpful to look at the differences between regulating cruise ships by contract rather than by the LUO (land-use ordinance). Contracts put the cruise ships on an equal basis with the town and allows it to sue for money damages if it claims the town breached the contract.”

Worden is the latest voice of authority to publicly question Article 4 placed on the ballot for Nov. 5 by the Town Council to repeal regulating cruise ships through the LUO and replace it with contracts.

Worden said in a interview:

“One of the big problems the town faces is the resource imbalance between the cruise lines and us. They're always threatening to sue, and the town is scared of possible suits, even if the suits don't have any merit,” Worden said.

The town is only training the industry “to push us around,” said the man who handled some of the most challenging cases the town ever faced, including those involving the Walsh Family enterprises, during a period when the company was in its most expansive period in Bar Harbor. Worden was the chief counsel for the town’s appellate body for more than five years until he stepped down in 2014.

The Walsh family owns Ocean Properties, the biggest hotelier in Bar Harbor and the operator of the only dock which disembarks cruise ship passengers.

“So in some ways, entering into contracts opens the door to even more possible threats,” Worden said.

“In normal regulations, the government is regulating an activity that the government thinks harms the public interest. It's not a mutual agreement between the government and the party being regulated.”

Worden said even though there is some safeguards written into the proposed new code called Chapter 50, “You really have to go through the contracts very carefully” to ensure “the slightest little thing in there” doesn’t backfire.

But the town also has to be willing to be an enforcer, he said.

Worden cited the recent case of Ocean Properties defying a town order to seek a permit to operate its passenger disembarkation business as required under the citizens approved ordinance in November 2022 to cap cruise ship passengers at 1,000 a day.

OP appealed the Aug. 5 citation by the code enforcement officer to Superior Court, where it sits while both parties await the outcome of the Nov. 5 vote to repeal the 2022 ordinance.

Worden said he wouldn’t have waited.

He would have sought an injunction to compel Ocean Properties to comply and not just settle for the appeal to snake through the court calendar.

“You don't have to wait until all the appeals are over with to then say you're going to seek your remedy,” Worden said.

That, of course, would require the Town Council, the current town manager and town attorney to adopt an enforcement sensibility and not an appeasement sensibility.

“If a permit is revoked or notice a violation is given, and they appeal it, but the revocation or the notice of violation is still on the books and they're bringing passengers in without a permit, the most logical thing to do would be to jump into court, to get into a preliminary injunction, to say there may be a dispute between these parties, but they can't just go ahead and do self help and be unloading passengers while all this is going on.

“That would be the way I would approach it, if they were just blazingly saying we don't need a permit, we can just continue to do this. And we say, Oh yes you do, and if you continue to do it, we’re asking for an injunction.”

Worden warned against the repeal of LUO as an instrument of enforcement which uniquely empowers municipal governments.

“The LUO is the government regulating people like the disembarkation pier. The other, the one being regulated, has certain rights … but they're not equals.

“In contract law, it's two parties who are coming together, who are mutually making an agreement.

“It's a conceptually, different ballgame of two equals coming together, agreeing I've got this that you want, and you've got what I want, and we'll make a contract to exchange those two things that will benefit each of us in our own way, according to what you believe is in our interests.”

That’s not a deal Worden appeared willing to do - give up unique municipal governing powers in exchange for a promise of fewer lawsuits.

“There's no doubt the cruise lines have a lot of clout,” Worden said. “It's a pretty major industry, yes?

Worden then quoted Bob Dylan:

“And what the old song says is, money doesn't talk, it swears.”

Tremont campground seeking to build half of approved campsites

TREMONT - Two years after Acadia Wilderness Lodge and a citizens group opposing its “glampground” park for 154 units reached a settlement, the owners now wants to build 22 tents, only half of the agreed total in the settlement.

The Planning Board is expected to review the application Tuesday night and give the code enforcement officer the green light.

It’s not known if this is only a first phase, or the final application.

The owners, Kenya and James Hopkins, operate an abutting glampground consisting of eight luxury yurts on Kelleytown Road.

Besides the reduction of total units to 45, the parties agreed there must be no parking associated with AWL on Kelleytown Road. Town attorney James Collier stated, “No parking over on Kelleytown Road, which is good because it makes the commercial nature of the development more on the main drag as opposed to on a residential street.”

After five years the entrance to the campground on Kelleytown Road will be closed off and another entrance from Route 102 will instead be used to move campground traffic further from the residential street to a main road, according to the agreement.

As agreed, the owners have constructed fencing along their property lines with abutting neighbors.

Leonard Leo making his mark on Maine’s legislative races

MOUNT DESERT - The state’s two major dailies recently reported how the outsized influence of dark money operative Leonard Leo, who calls Northeast Harbor his summer home, is giving Maine Republicans a huge lead in fundraising to flip the state’s legislature.

On Oct. 14, the Bangor Daily News reported,

“Democrats who have controlled Augusta since 2018 are warning of a Republican spending advantage in upcoming elections for the Maine House of Representatives.

“Republican outside groups have spent nearly $585,000 on House races to $507,000 for Democratic counterparts as of Sunday. The minority party has heavily targeted its spending, putting $400,000 into just 12 key races that could decide control. Democrats have only spent $159,000 in those elections but have supported candidates more equitably.

“In the early part of the last decade, Maine Democrats were supported by large donors including billionaire S. Donald Sussman. But he and other donors have pulled back from campaign spending in recent years, and Republicans have found some large donors of their own.

“They include conservative judicial architect Leonard Leo, who gave $375,000 to a political network affiliated with state Rep. Laurel Libby, R-Auburn. The House and Senate Republican campaign arms have gotten $475,000 each from the national Republican State Leadership Committee. A national Democratic counterpart has not responded in kind this year.”

The Portland Press Herald wrote on Oct. 14:

“Republicans, meanwhile, are getting a major boost from two prominent national conservative activists and financiers, Leonard Leo and Thomas Klingenstein. Leo has a home in Northeast Harbor. Klingenstein lives at least part-time in New York but has become a significant political donor in Maine.

“The duo are putting their money into leadership committees established and controlled by lawmakers who decide how to allocate the support.”