BREAKING NEWS: OPL sues town again, over notice of disembarkation violation

BAR HARBOR, Sept. 21, 2024 - The owner of the docks disembarking cruise ship passengers has sued the town again, to overturn a citation for not having a permit to operate such an operation under the town’s new land-use ordinance governing such visits.

A copy of the lawsuit filed 11 days ago was obtained by the QSJ. The town manager and Town Council have not disclosed it publicly.

A stated goal of the council was to reduce such litigation when it approved a November ballot initiative to repeal the 2022 citizens ordinance and replace it with five-year contracts with cruise lines and Ocean Properties, which operates the docks.

The 38-page complaint filed with the Hancock County Superior Court asks for an injunction to bar the town from pursuing its permits and seeks to recover legal fees.

The suit repeats many of the issues already litigated in federal court, when U.S. District Judge Lance Walker ruled Feb. 29, 2024 that the town has a “home-rule” right to impose restrictions on cruise ship visitation.

On March 6, the town moved to delay implementation of the 2022 citizens ordinance which had capped daily visitation at 1,000 passengers. That prompted a lawsuit from lead citizen petitioner Charles Sidman in Superior Court.

It gave time for the council to develop a new plan which it unveiled late summer to replace the citizens cap with individual contracts with cruise lines and the dock operator.

The new suit argues the town had set a precedent by permitting the dock owners for more than two decades.

“Since 2000, Plaintiff has owned and operated the Golden Anchor Harborside pier at 55 West Street,” the lawsuit stated. Golden Anchor is owned by Ocean Properties, which is party to another lawsuit pending in front of the U.S. 1st Circuit Court of Appeals in Boston.

“In 2001 to 2008, the Town issued permits to operate the Pier as such, including for the purpose of facilitating the disembarkation of all persons arriving at Bar Harbor by cruise ship and their return from Bar Harbor to those cruise ships.”

The plaintiffs stated this history showed “town officials and officers recognized the use of the Pier for cruise ship disembarkation.

“Indeed in March 2008, the Harbor Committee unanimously agreed to recommend approval of the Wharf License for the expansion of the Golden Anchor Pier on the north side of the existing pier. In so doing, the Harbor Committee memo of March 14, 2008 cited ‘the primary reason for the recommendation is move the cruise ship tender landing and associated traffic to a more isolated part of the harbor.’ “

“At no time from April 1, 2008, until June 18, 2024 did the Town change the terms of the Town Permits nor Plaintiff's duties and responsibilities pursuant thereto, including but not limited to the Town Permit's authorization to Plaintiff to use the Pier for the disembarkation of persons arriving at Bar Harbor by cruise and for the return of those persons from Bar Harbor to the cruise ships.

“And, at no time over the subsequent long use of the Pier was a notice of violation for disembarkation of cruise passengers issued for the Pier until August 5, 2024.”

That’s when Code Enforcement Officer Angela Chamberlain sent a notice of violation to Golden Anchor for operating disembarkation without a permit.

Also this summer, the town enacted Chapter 52 to the town code which spelled out all the procedures to regulate cruise ship visits according to the citizen-approved ordinance.

Here is a timeline of important cruise ship developments the last five years:

• In 2019, the Town Council received a barrage of complaints when more than 272,000 passengers visited downtown Bar Harbor.

• In 2021, the council conducted a town-wide survey which found 55 percent of the respondents felt cruise ships gave Bar Harbor a negative image.

• In March 2022, more than 300 citizens signed a petition for a ballot initiative which used the land-use ordinance as the instrument to govern visitation as passengers disembark on land. It set a daily cap of 1,000.

• That summer, the council countered with individual agreements with cruise lines with a daily cap of 4,000.

• On Nov. 8, 2022, 58 percent of voters approved the citizens petition over the council agreements.

• In December 2022, a group of local businesses led by Ocean Properties sued the town in federal court saying, among other things, the citizens petition violated the Constitution’s interstate commerce laws.

• In February 2023, citizen petitioner Charles Sidman sued to seek intervenor status as a defender. He was opposed by the businesses and the town. Federal Judge Lance Walker issued a blistering critique of the town and allowed Sidman to participate.

• A three-day trial was held in Bangor in July 2023.

• On Feb. 29, 2024, Walker issued his ruling in favor of the town. (That ruling has since been appealed and awaits adjudication in Boston.)

• One week later, the town announced it would not go forward with enacting the citizens ordinance which prompted the lawsuit from Sidman.

• Over the summer of 2024, the town manager and council outlined a “two-track” strategy to slowly roll out enactment of the citizens ordinance while at the same time pursuing an alternative to reprise the individual agreements with cruise lines it had tried in 2022.

• As part of the slow enactment of the ordinance, the code enforcement officer issued her notice of violation to Golden Anchor on Aug. 5, 2024.

• Its attorneys filed the most recent lawsuit on Sept. 11.

• The appeals board is scheduled to hear the case on Oct. 8.

It’s anyone’s guess how all this will play out.

Meanwhile, the council isn’t talking. It did not publicly report the recent lawsuit even though it’s published every other cruise ship-related news on the town’s website.

The QSJ has asked for an explanation of this news blackout. I’m awaiting a response.