REPRISE: Federal judge's rebuke of how Bar Harbor treats tourism with 'carte blanche'

BAR HARBOR, Feb. 24, 2024 - Dear reader, I am taking a break from writing the QSJ until further notice - probably into March.

Today I am republishing the most-read column I did in March 4, 2023 which received more than 9,000 views.

Judge Lance Walker may yet rule against the town’s ordinance capping cruise ship visitors but it would be done against the backdrop of his opinion expressed previously.

Please read and share.

Lincoln Millstein

U.S. District Judge Lance Walker’s rebuke of how Bar Harbor treats tourism with 'carte blanche'

BAR HARBOR, March 4, 2023 - 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.