Federal judge: Cruise ship industry given 'carte blanche' from Bar Harbor town council

OTHER NEWS: SWH solid waste task force to expand; who's running in MDI municipal races? Senior tax abatement a 'mess'

BAR HARBOR - Not only did U.S. District Court Judge Lance Walker this week rule that citizen petitioner Charles Sidman may participate in the defense of the lawsuit from cruise ship advocates, he delivered a scathing rebuke of the town leadership as a long-time tool of the industry working against the interest of voters.

Walker did not pull his punches. He named names and cited bad behavior.

The legal takedown from a federal judge showed just how far this town has veered from the normal ethos of a democratic community. You may read Walker’s entire opinion here.

Last Nov. 12, the QSJ wrote that the town was in turmoil after a state Superior Court judge threw out its 2021 charter changes and voters overwhelmingly approved the cruise ship cap:

“Tuesday’s was a solid vote of no-confidence in the local government to protect the citizens, their hopes and aspirations for a reasonable quality of life, as opposed to another developer clomping through town and getting carte blanche treatment.”

This week, Judge Walker wrote,

“Indeed, there is a strong showing in the record so far adduced that the Town has long given over to one or more agents of the Walsh family enterprises (i.e., most of the nominal plaintiffs) what appears (upon first impression) to be carte blanche in matters of Bar Harbor’s informal and voluntary cruise ship policy.”

Webster’s defines carte blanche as “full discretionary power … like a blank check.”

You may dismiss my reporting as fodder from a moody, cantankerous blogger. (Some do, especially council members.)

But a United States district court judge? His opinion carries a bit more gravitas.

Sidman was the lead petitioner in the citizens’ initiative to cap cruise ship visitors (including crew) to no more than 1,000 per day, which was approved last November. The vote was overwhelming - 1,780 to 1,273. The result rebuffed a much weaker effort by town officials to limit passenger visits to about 4,000 day.

Both the plaintiffs and the titular defender, the Town of Bar Harbor, tried to keep Sidman from having a seat at the table, Walker wrote.

“While the parties’ effort to stipulate a resolution for the 2024 season is timely for purposes of the cruise ship industry’s itinerary planning, they have not provided any indication that their voluntary approach to settling the matter of the preliminary injunction involves any serious compromise in terms of passenger volumes that would be responsive to the expressed will of the Town of Bar Harbor’s electorate, even as they insist in briefs opposed to Mr. Sidman’s intervention that the Town will vigorously litigate to uphold the ordinance.”

The plaintiffs - local businesses suing to stop the visitors cap - are represented by Eaton Peabody of Bangor. The defender, Town of Bar Harbor, is represented by Rudman Winchell of Bangor.

Instead of fighting the lawsuit head-on, the town’s attorney moved instead to negotiate an agreement with Eaton Peabody to prevent an injunction sought by the plaintiffs to throw out the citizen’s ordinance. In exchange, the town would settle for the less onerous cap proffered by the council which voters rejected decisively.

The town’s attorney, Steven Wagner, did not return several request for comment about the judge’s ruling. Neither did any of the members of the Town Council.

I wanted to ask Wagner whether his tactic showed weakness at the start. I also wanted to ask whether he knew Sidman owned commercial property in Bar Harbor, a fact that Walker cited to grant Sidman standing in the case.

“Those opposed to Mr. Sidman’s intervention argue that he cannot demonstrate a real or concrete interest beyond the interest of the general populace,” Walker wrote.

“To the contrary, Mr. Sidman has a concrete personal stake in the alleged harms the ordinance was meant to redress. Quite unlike a party with no skin in the game who seeks to intervene solely to advocate on behalf of or against an enactment that is dividing popular opinion across a wide region, state, or nation, Mr. Sidman is connected to this very localized controversy based on a personal investment in the Town of Bar Harbor, including an investment in its commercial downtown.

“Given this basic reality, it is reasonable to infer that he has a concrete, personal stake in the local commons that is impacted by the influx of cruise ship passengers throughout an extended season. This is more than a mere ‘undifferentiated, generalized interest.’ ”

Wagner either did not do his homework, or did not provide an adequate challenge. (A return call to the QSJ might have cleared that up.)

On the other hand, Sidman’s lawyers, Curtis Thaxter of Portland, anticipated this challenge and were prepared.

History of favoring cruise ships

Now that carte blanche is a legal term, let us visit its history in Bar Harbor.

The record favoring cruise ships cited by Walker goes back to council chair Paul Paradis, who owns the town’s hardware store at 31 Holland Avenue. Paradis, at town expense, began taking junkets to Miami to pay homage to the cruise lines industry by attending its international conventions starting in 2011. (See attached receipts). The QSJ has reached out to Paradis numerous times in his store for an interview but to no avail.

Around that time, the Town Council disallowed the reopening of the town pier which gave a virtual monopoly of tendering passengers to the Walsh family, which owned an adjacent private dock and lobbied against the public pier being used for disembarking cruise ships.

(Question for Judge Walker: Weren’t the Walshes and the town restraining trade by limiting options for cruise ship disembarkation?)

A cruise ship committee was created, loaded with industry stakeholders some of whom were given voting power by the Paradis-led council. The chair of the committee was an agent of the Walsh family.

“Based on my review of the available record, the history of this controversy reflects a decidedly pro cruise ship sentiment on the part of the Bar Harbor Town Council,” Walker stated. “The Town’s Cruise Ship Committee has been chaired by an agent of a principal plaintiff and does not appear (at first blush) to have done anything other than foster the growth of cruise ship passenger traffic.”

Walker did not name Eben Salvatore, who stepped down as committee chair last year after he was elected to the Warrant Committee where he convinced that body that he did not have a conflict of interest and then successfully ushered members to oppose the citizen petition on the ballot.

Salvatore signed an affidavit as a sworn plaintiff in the suit against the town.

The current council has given the Walsh family complete assignation of Lower Main Street - and parking at Agamont Park - chiseling away at public access so the cruise ship tour buses have turned the area into a virtual terminal. The police chief and harbor master have become essentially agents of the tender business.

Passengers pay the town a fee for services, adding to about $1 million a year, far less than the $2.2 million generated by parking fees from land-based tourists.

“As cruise ship visitations steadily swelled (stalling out only during a COVID-19- induced hiatus), the tide of local sentiment was turning against the cruise ship industry. The record contains evidence that the Town and the Plaintiffs were aware of this shifting,” Walker wrote.

Walker also took note of how Town Manager Kevin Sutherland and council chair Val Peacock - without mentioning their names - openly opposed the citizens petition which in March 2022 garnered sufficient support to go on the municipal ballot.

“In the months leading up to the election, the Town actively encouraged the electorate to vote down the initiative. By all appearances and representations, the initiative movement and the new ordinance have proved quite divisive at the local level,” Walker noted. “Despite the Town’s efforts, the initiative passed.

“When added to the fact of the Town’s opposition to the ordinance, there arises an idiosyncratic factual setting that supports a commonsense finding in favor of intervention” by Sidman, the judge wrote.

Walker added that the town’s “history of boosterism for the cruise ship industry” puts into question whether it is “an adequate champion” on behalf of the interest of the citizens who voted against the council’s recommended path.

Judge Walker agreed with Sidman’s lawyers who wrote:

“There is ample evidence to show that the Town is unwilling to mount a full-fledged defense of the Ordinance. The then-Town Manager was caught on video discussing the lawsuit with industry insiders and opponents of the Ordinance, where he seemed to support the imposition of an injunction, or alternatively, “figure out some sort of terms in which [the Town] allows [passengers of cruise ships] to show up anyway.”

The QSJ obtained the video and published it on Jan. 28.

https://theqsjournal.substack.com/p/smoking-gun-video-shows-why-kevi

By accepting Sidman as an intervenor, the judge also gave him “discovery” rights, allowing Sidman to seek financial records from the plaintiffs to prove their economic hardships wrought by the proposed caps.

That would include the financial records of Little Village Gifts, the restaurants Cherrystone’s, Jalapeno, Fish House Grill, Bar Harbor Beer Works, Geddy’s, Testa’s and, of course, all of the Walsh family businesses. How else do you prove their claim that they would suffer financially?

Sidman also will no doubt attempt to “discover” how many millions in revenue town taxpayers lost over a decade by giving the Walsh family a monopoly on tendering passengers to its private docks.

Judge Walker’s ruling ups the ante (and cost) for the plaintiffs. Sidman said he and his lawyers are prepared to use discovery rights to the fullest.

Even the Walsh family must have some limit for tolerating legal fees.

The land use ordinance approved by voters in November is a simple act: No property owner in town may disembark more than 1,000 visitors from cruise ships on any given day.

The tourism industry has manipulated local zoning to its benefit for decades, opening the town’s waterfront after the 1947 fire which decimated most of the mansions of the Rusticators era to hotels and motels.

The town has 40 zoning districts, each with its own history of how it got a particular designation but filled with loopholes. It’s a giant monopoly board. You may not build a hotel on Cottage Street but if you call it a bed and breakfast, that’s allowed. So a 44-room “B&B” is in the process of being erected by a former council member, the former Planning Board chair and a local builder.

In 2010, the town passed the largest change to land use in its history. It was a development agenda so wide ranging, so contorted and so full of errors that a group of residents went to court and had it overturned in 2013.

Frustrated citizens then began to use the courts and Maine’s citizens initiative laws to combat the town’s boosterish activities. Seldom does an election go by without some citizens petition on the ballot.

Sidman and others have lobbied the council to disband the self-serving cruise ship committee. It will be interesting to see how the council will react, if at all, to Judge Walker’s legal opinion and ruling.

Much ado about garbage in SWH; select board supports solid waste reduction panel

SOUTHWEST HARBOR - There is about to be a lot of trash talk this year in town.

Sean Sullivan, member of the town’s solid waster reduction task force, got affirmation from the select board Tuesday night to support its work by allowing it to add volunteer members so it may proceed with its recommendations.

This comes in a year when the contract with the transfer station is up for renewal and questions are being raised about the services provided by Eastern Maine Recycling, which owns the transfer station on Long Pond Road.

“It's like working on an old house. It seemed like a simple test when you start but looking at how solid waste and recycling is done around the Northeast and and on the Eastern Seaboard of the United States and how it's done in Down East, Maine, it's embarrassing,” said Sullivan.

“It's really, really bad here. And it's not the fault of Southwest Harbor or EMR. But there's a lot of unintentional decisions that are made that we'd like to make some recommendations to back away from,” Sullivan said.

“I don't want to spend a lot of time on that tonight. I just want to know, do you guys want us to continue to work because it really feels like the opposite.”

Sullivan expressed frustration over the number of members for the task force. It had operated on the assumption it had five members and then was told its was six. Several meetings had to be canceled because of a lack of a quorum.

Also, select member George Jellison appeared to be working against the interest of those favoring reduction of solid waste when he recently proposed to eliminate the town’s spending on recycling which got no support.

The select board voted 4-0 to allow the task force to fill all six seats. Jellison did not attend Tuesday night.

Sierra Club adds two Bar Harbor residents to its Maine committee

BAR HARBOR - In other environmental news, Maine’s chapter of the Sierra Club, the country’s oldest grassroots environmental organization in the United States with 700,000 members, has tapped Ezra Sassaman and Laura Berry for its executive committee.

Sassaman, a member of the Bar Harbor Warrant Committee, is advocacy and organizing coordinator at Maine Youth for Climate Justice.

Berry has held numerous positions in environmental and climate research. Recently she was a victim of back-office politics on the Bar Harbor Town Council when she was abruptly fired as the town’s sustainability coordinator.

Tax abatement program for elderly is a “mess”

BAR HARBOR - Assessor Steven Weed called it the worst tax abatement legislation he’s seen in 32 years.

State Rep. Lynne Williams of Bar Harbor said “LD 290” is a mess - the law sponsored by Republican State Senate leader Harold “Trey” Stewart of Presque Isle to abate all property tax increases for persons 65 or older as long as they claimed a Maine homestead exemption for 10 years.

There are at least three bills in session to amend LD 290 with one seeking to repeal it. Nonetheless, that repeal may not occur in time to halt this year’s reapportionment of local taxes.

Stewart came up with the idea from a woman in a grocery store in Presque Isle, he told the QSJ in an interview last year. He never consulted Lewis Cousins, the local assessor in Presque Isle who would have told him the law doesn’t necessarily assist the needy.

On MDI, where retirees are among the wealthiest residents, 18 applicants in Bar Harbor were for properties exceeding $1 million in taxable value. In Mount Desert it’s even worse. Twenty of the 165 approved applicants were for properties exceeding $1 million with the highest being $2,874,000. As the town’s tax increase this year will likely be around 9 percent, that homeowner will be relieved of the $2,070 increase.

The abatement in Mount Desert total about $75,000 assuming a 9 percent tax increase.

In total, Bar Harbor reported 341 approved applications, with seven of those waiting ID verification, Weed said. That’s about 10 percent of taxable properties in town with a total valuation of $171,392,600.

Assuming a 10 percent increase this year - former Town Manager Kevin Sutherland proposed a 15 percent increase and the Town Council is working feverishly to reduce that - the loss of tax revenue under the program would be $160,000.

The state has a $15 million item in its budget to pay the towns back, but that budget has not been approved. Nonetheless, the state constitution mandates that all abatement programs reimburse towns at least 50 percent of the cost, Weed said.

SWH Town Manager Marilyn Lowell reported 100 approved applications representing $24,851,868 in assessed value. Assuming a 10 percent budget increase, that would be a $36,603 burden.

Assessors hated the program. They had to verify every application for homestead claims, proof of residency and age.

On top of that the program had no means test for qualifying applicants based on income.

Weed said his favorite abatement initiative was Maine’s “circuit breaker program” which directly refunded homeowners and renters for a portion of their property tax or rent payments, based on income.

Tremont Town Manager Jesse Dunbar wrote in an email he did not have the data because the town’s part-time assessor isn’t due in until next week.

Municipal elections: Who’s running so far

MOUNT DESERT - Apparently, we will continue to have John Macauley’s steady hand at the helm of the select board and Geoff Wood, the board’s honest broker, as well.

They are running uncontested for re-election, according to Town Clerk Claire Woolfolk. Former Public Works Director Tony Smith is re-upping for his seat as a trustee on the high school board. Katherine Dube is running for the school board seat vacated by Gail Marshall, Woolfolk said.

In Southwest Harbor, select chair Carolyn Ball is seeking re-election, and Chapin McFarland, a Northeast Harbor fire fighter, has taken out papers to run for the other vacant seat, as previously reported.

In Tremont, Jayne Ashworth, who performed amazingly well as a person “from away” at the last municipal election, and resident James Bradford are running for two select board seats. Last year, Ashworth received 148 votes against select chair James Thurlow’s 181.

Mount Desert and SWH closed their applications this week, 60 days before the town elections. Tremont’s last day is March 9.

Bar Harbor opened its election process Friday. Citizens will have until April 3 to file for three seats on the Town Council. Terms for Val Peacock, Jill Goldthwait and Erin Cough are up for re-election.

RUMINATIONS

MOUNT DESERT - Two weeks ago I shared my thoughts of perhaps making the Quietside Journal a non-profit enterprise, ala public radio.

I received many thoughtful comments and suggestions.

My biggest need is First Amendment/libel insurance and support so that I may continue my investigative journalism without fear. This is not cheap.

I use one of the country’s best libel lawyers whose hourly rate is $800, which I have been paying out of my own pocket. That is for a pre-publication service, to read my articles and red flag danger zones.

I also spend money on Freedom of Access requests, which charge a fee after the first two hours of free research.

Is there a mechanism for me to get financial support without a subscription model on Substack?

I’d love any suggestion.

CORRECTION

The QSJ incorrectly reported last week that the Kingsleigh Inn in Southwest Harbor was operated as seasonal workforce housing the last two years. The Inn at Southwest Harbor next door was the staff housing for the Claremont Hotel.

TRIBUTE: Gail Louise (Stanley) Leland

BAR HARBOR - Gail Louise (Stanley) Leland, 69, died peacefully at home on Jan. 30, 2023. She was born Oct. 11, 1953, in Bar Harbor, the daughter of James and Alfreda (Strout) Stanley.

She grew up in Trenton, where she enjoyed the outdoors with her father and brother Gary. They spent time clamming, rabbit hunting, snowmobiling and lobstering. She learned knitting, cooking and sewing at the hands of her mother, Alfreda, and grandmother, Estella. Her first year of high school was spent at Gilman in Northeast Harbor before moving to the new MDI High School. She graduated Class of 1971.

Gail went on to the University of Maine-Machias, where she graduated with a bachelor’s degree in elementary education. Following graduation, she married Carroll Leland on Oct. 18, 1975. She taught at Eden Nursery School for a couple of years. After this, she became heavily involved in the family business, Trenton General Store, and with her husband continued to grow the business into a full-service supermarket, Carroll’s IGA.

In 1980, Gail and Carroll purchased Seaside Cottages in Town Hill from his aunt, Ethel Flood, who established seven housekeeping cottages on Clark Cove in the late ’50s. Gail operated the cottage rental business, while Carroll primarily ran the grocery business. Through Seaside, they met and made many lifelong friends.

Gail followed in Alfreda’s footsteps as a faithful member of Church of Our Father in Hulls Cove, where she was involved with many programs including Episcopal Church Women, Vestry and the Downeast Church Fair that she helped organize, and with her family, ran the famous lobster booth for 51 years. Her faith was a guiding force throughout her life. She not only heard the Word, she lived it. She was a member of the board of directors, secretary and treasurer of the Trenton Chamber of Commerce. She participated in local quilt groups, was an amazing knitter, artistic sewer, and was generous in sharing her creations.

She and Carroll prioritized family. Many adventures took place with their children and extended family, such as camping trips to Lily Bay at Moosehead Lake, Thomas Island, Donnell Pond, island hopping in the boat, Sugarloaf trips, Rock Crossing lodge hunting camp and yearly vacations around the world. Gail was involved in her children’s activities including being a Boy Scout leader, Girl Scout leader and Sunday school teacher. Gail and Carroll held residential lobster licenses, often bringing guests and families to share the adventure with, and a photo opportunity. Many times, they cooked off lobsters and invited guests to join them for a feast.

She continuously served others. She was a dedicated caregiver for her aging parents and other elderly family members. She volunteered many years at Sonogee Nursing Home. Her goodness wore off on everyone she met. She cherished her time with family and friends. Her home was always a welcoming place to gather. She cherished being Grammie, passing on her knowledge of crafting, sewing and always being compassionate. Gail brought peace and love to anyone who knew her. She was able to share joy in the hearts of many, both young and old. She is truly an angel of the Lord; her spirit lives with us forever.

Gail was predeceased by her parents, brother Gary Stanley and infant sister Mary Helen Stanley. She is survived by her husband of 47 years; her sons, Christopher and David; daughter Mary and her husband Ben Hopkins; grandchildren, Celeste, Izzy, Estella, James and Lucy; stepson Matt Guthrie and his children Dylan and Anna; sister-in-law Kathy Stanley; Missy, Mackenzie and many friends, nieces and nephews.

A service will be held at 11 a.m. Friday, March 17, 2023, at Church of Our Father in Hulls Cove. A reception will follow at the Hulls Cove Neighborhood Association across the road.

In lieu of flowers, please send donations to ECW, Church of Our Father, P.O. Box 186, Hulls Cove, ME 04644, Trenton Volunteer Fire Dept., 59 Oak Point Road, Trenton, ME 04605, or a charity of your choice.

Arrangements in care of Jordan-Fernald, 1139 Main St., Mount Desert. Condolences may be expressed at www.jordanfernald.com.

TRIBUTE: Paul A. Jewett

NORTHEAST HARBOR - Paul A. Jewett, 76, passed away Feb. 25, 2023, at his home with his wife and daughter at his side. He was born Dec. 20, 1946, in Bar Harbor, the pride and joy of Arthur and Madeline Jewett.

After graduating Bar Harbor High School, Paul enlisted in the U.S. Navy as a radio man, serving four years. After his honorable discharge, he met the love of his life, Priscilla Lavigne, and soon married.

Paul could not leave the military life behind, joining the Air Force Reserves and proudly serving as a MAINEiac for over 20 years. Paul was dedicated employee, working for the Bar Harbor Times as a pressman for many years before going to The Jackson Laboratory to start their in-house print shop, where he stayed until his retirement.

Paul is survived by his wife, Priscilla, of Northeast Harbor, Tucker and Oliver, his daughter Stephanie Roux and husband, Charlie, of Auburn, his granddaughter Abbey Newcomb and fiancé Konnor Petit and great-grandson Archer Petit of Lewiston and sister Ann Foss of Palymra.

Graveside services for Paul will be held in the spring of 2023.

In lieu of flowers, please make donations in Paul’s memory to the Northeast Harbor Ambulance Service, P.O. Box 122, Northeast Harbor, ME 04662 or Lurvey-Wright Post 103, P.O. Box 431, Seal Harbor, ME 04675.

Arrangements by Jordan-Fernald Funeral Homes, 1139 Main St., Mount Desert.