Should swim club pool be rebuilt? Waterfront owners face risk calculations
OTHER NEWS: Sidman lawsuit may be tip of iceberg; will council be on trial?
NORTHEAST HARBOR , APRIL 7, 2024 - Will the very private Northeast Harbor Tennis Club be able to raise $10 million to rebuild its storm-ravaged waterfront swim club without having to open its membership to - gulp! - more diverse donors?
More importantly, should it?
“The swim club is now demanding a $10K payment from all members of the pool to cover storm damage,” wrote one member in an email to the QSJ. “Many are not joining any longer.”
According to the member, president Robert Loring stated in a letter to members April 1:
“We are dealing with a multi-faceted project on a very large scale. An experienced landscape architect, Sam Coplon, is serving as our project coordinator. In turn, civil engineer, Greg Johnston, is navigating through the complicated engineering and permitting aspects of our shoreline location.”
Code Enforcement Officer Kim Keene confirmed she is reviewing the application for test borings which will inform the design for a new seawall. The club is expecting heavy equipment to occupy that tight road area to perform reconstruction this summer.” It is unclear how traffic in that tight area will be affected and for how long.
The Jan. 10 storm and subsequent ones left no doubt as to the vulnerability of a seaside recreational area built for a different time. (See video below of the Jan. 10 destruction.)
The swim club, like so many summer colonies, is a collection of disparate buildings which took a century to coalesce. It has a restaurant, ocean access, pavilion deck, bath houses, locker rooms and a raised pool, all conjoined in an extremely tight space.
The notion to build back a club on the water’s edge, or a shore path or a carriage road faces a new reality no matter how deep their majesty is freeze framed in our memory.
Coastal towns are just starting to process the enormity of this conceit. And it’s costly, especially for private property owners not inoculated by FEMA bailouts.
Folks like Sheryl Harper, owner of the largest commercial wharf in Southwest Harbor, are battling the unknown.
“It’s devastating to see,” Harper told the Bangor Daily News, adding she doesn’t know whether she can afford to fix the wharf on Clark Point Road. “And I have to rebuild for a stormy future. We have to go higher. To me, that’s an enormous cost.”
Up and down the East Coast, developers, fishermen and homeowners are recalibrating their tolerance for the rising cost of anything which might be in the cross hairs of the next counter-clockwise cyclone.
Many are not ready to put humpty dumpty back in its original form.
“This is an important wake-up call for the future of coastal Maine,” said Cameron Wake, a climate change expert at the University of New England, in an article in the Portland Press Herald. “We cannot build back the same way and expect anything different in the future.”
Some private developers and others also see an opportunity to innovate, according to the Press Herald.
“When we build something, it’s for the next 100 years, not for the next 20, so seawalls and breakwater have to be included in any plan we do,” said Drew Lyman, president of Lyman-Morse Boatbuilding Inc. in Thomason and Camden who led the $15 million remake of the Camden waterfront. While Lyman finds that local zoning limits on building height remain an obstacle, he hopes the storm aftermath will shift the dialog from the political to the practical.
“If we don’t have reasonable conversations now,” he said, “nothing’s going to happen, and that’s my biggest fear.”
Bar Harbor Village Improvement Society confronted this reality when it began last week to raise $600,000 from private donors to repair the Shore Path because its hope for FEMA money may be unavailing, according to Shaun Farrar of the Bar Harbor Story.
A single member could probably fund the entire project to restore the Northeast Harbor swim club to its glory, but would that be wise?
In his email, Loring appeared hopeful.
“We plan to build a new heated pool with surrounding deck and to rebuild the men's changing room at a higher elevation to meet current code. The height of the restaurant/dining area will need to be addressed as a component of the overall plan.
“Based on preliminary estimates, the seawall may cost $3 million, and the heated pool and decking are currently forecast to cost approximately $2 million. These are just two pieces of the larger puzzle. The additional costs of excavation, raising and rebuilding existing structures, professional services (architect, engineer, etc.) and other related expenses will be significant.
“For this major capital project, the Board anticipates a fundraising goal of at least $10 million. We will need the full support of all our constituents to meet this once-in-a-lifetime challenge.”
Loring stated the club has engaged Gary Friedmann and Associates to advise the board on how to meet its fundraising goal. “Your generosity to support the capital campaign at the highest possible level will be deeply appreciated to ensure the future of the pool.”
Behind the drama of latest cruise ship imbroglio are more troubling questions
BAR HARBOR - I recently asked the code enforcement officer if the amendment to the land-use ordinance cracking down on hotels licensed as beds and breakfasts were to be adopted by voters in early November, how quickly could that amendment be enacted.
“Thirty days,” she replied.
It’s been 516 days since 1,780 residents voted for an amendment to the LUO requiring property owners in Bar Harbor not to disembark more than 1,000 cruise ship passengers a day.
And this year is shaping up to be very much like previous years, with business as usual.
So far,101 ships have registered to make port calls here, two thirds of which carry more than the 1,000-passenger limit.
That’s because the Town Council and its town manager have unilaterally waived enactment of the ordinance saying that it isn’t fair to give cruise ships only a 90-day notice, even though the passenger limit was officially filed on March 17, 2022 and broadly made known to the entire cruise ship industry by its own trade organization.
(Virtually every passenger agreement on cruise ships allow itinerary changes on the fly.)
The council is now promising to enact the ordinance in 2025.
But who knows what will happen given the proclivity of this council to protect tourism interests over that of voters.
By delaying enactment, the council saved an important income source for the businesses suing the town, allowing them to regroup and plot strategies for 2025 and beyond. Restaurateur Kristi Bond, chair of the Association to Protect and Preserve Local Livelihoods, thanked the council March 6 after a special meeting to freeze the ordinance.
But what did the council actually do and was it legal?
No, says citizen Charles Sidman whose lawyers filed a lawsuit and an administrative appeal last week.
It’s unclear exactly what was approved. There was no vote, Sidman stated. If the town manager proceeded to interfere with the code officer and ordered a stoppage to the citizens LUO amendment, that would constitute an illegal act not allowed by charter, according to the lawsuit.
It’s never a good sign when lawyers and accountants assume an outsized role in any enterprise. That usually suggests the enterprise is on the verge of collapse.
This municipality has been essentially under receivership the last two years with a single law firm driving strategies which have resulted in judges taking more than their share of having to run this town.
And, of course, this has also resulted in that single law firm racking up record billable hours.
Unfortunately, citizen referenda have become a necessary cog in the municipal machinery, as trust in the council hit a nadir a decade or so ago.
Successful citizen petitions overthrew sweeping zoning under town manager Cornell Knight, blocked the use of a town pier to offload cruise ship passengers, required office holders to show proof of voter registration and threw out the proposed 2020 town charter which is still under litigation.
Now some council members are in a lather because of Sidman’s latest legal actions.
According to Bar Harbor Story, some council members took offense at Sidman’s naming individual councilors as defendants.
“After the court judgement in March, we’ve been working to craft regulations to govern cruise ship disembarkations in line with the ordinance—a process in which Mr. Sidman and his attorneys have been active participants,” councilor Kyle Shank stated. “And what does he do in the middle of this work? Sue us, not just as a body but as individuals, simply because we prioritized prudence and good judgement as the elected officials of our community over his demands. To avoid being sued by one party, we apparently only managed to invite suit from another—our own partner in the process, no less.
“This is what I believe will truly tear our community apart: not cruise ships, not tourism, but our inability to view sensibility as a good thing, to see compromise as a virtue, and to solve our problems with dialogue and politics instead of litigation that, ultimately, costs taxpayers not just money, but the ability for their elected officials and town staff to focus on other issues that are even more important to our community.”
Shank should know. He wasn’t on the council when the ordinance, which he opposed, was approved.
Instead he was chairing the town’s comprehensive plan task committee and boiling the ocean over every detail of town governance. The committee started in December 2021, and by the time Shank vacated the chair seat in June 2023, it was re-litigating every section ad nauseum. Only now, since he left, has the committee finally brought the process in for a landing, to update a 2007 document which was due for a facelift every 10 years.
The ire reserved for Sidman is personal and viscerally impaling. Just read council chair Val Peacock’s virulence reserved for Sidman as opposed to her light touch for APPLL, the original plaintiffs who brought the first action against the town in the New Year’s Eve surprise attack of 2022.
“‘While the appeal by APPLL, though disappointing, was not unexpected, Mr. Sidman’s unwarranted and spurious action only serves to demonstrate that neither side in this issue has the best interests of the people of the Town of Bar Harbor at heart,” Peacock stated. ‘We will defend against both litigious parties vigorously as we work to implement the ordinance and continue to engage in dialogue with the community on ways to chart the proper course on this issue.’
“So far, legal actions related to Mr. Sidman’s cruise ship initiative have cost the Town more than $300,000 in legal fees.”
Sidman issued his own statement saying the type of legal complaint his lawyers filed required the naming of town councilors as defendants individually in their official capacities. “There is no intent to render them personally liable for any damages, even though they are, and should be acting as, fiduciaries for a $3 billion dollar enterprise, $25-30 million dollar annual operating budget and the lives and well-being of approximately 5,000 fellow citizens.”
In other words, Shank’s little emoticon was much ado about nothing.
More seriously is the false narrative Kyle and others on the council are spinning that Sidman and the town have been “active participants” in forming a path forward after U.S. District Judge Lance Walker ruled March 3 the 1,000-passenger cap was a legal use of the Maine “home rule” doctrine.
Like Donald Trump, if you just keep saying something is true over and over, some will start to believe it.
I’ve been covering this story longer than anyone and have written more words on it than I am embarrassed to admit.
I agree with Shank that the town is coming apart because of its inability to work for a common solution.
That’s what Sidman said he tried to do before he filed for the citizens referendum on March 17, 2022. He offered to meet with then Town Manager Kevin Sutherland to work together on something they both presumably wanted - a diminution of cruise ship activity.
Sidman’s entreaty was met with stone silence.
Did he really expect the second town manager recommended by Eaton Peabody, the law firm of Ocean Properties, to announce he had struck a deal with the hated Sidman?
Sutherland clearly wanted to put his own stamp on any cruise ship agreement.
Kevin Sutherland’s year running the town was an important chapter for anyone wishing for a full understanding of the long running saga of the misadventures of cruise ships in Bar Harbor.
Clouds surfaced early Sutherland’s tenure as he rolled out a familiar playbook which got him in so much heat in Saco. Nonetheless, on cruise ship matters he got a free hand.
One of his first acts was to hire maritime lawyer Sandy Welte from Camden. Why a maritime lawyer? Why Welte? Who recommended him? At an executive session on a wintry January night in 2022, Welte added to the chill and laid out a scary scenario for the council. Several members confirmed the content of the discussion.
They came away less confident they could slow the cruise ship industry’s profligacy. A small working group, including Sutherland, Peacock and former council member Jill Goldthwait, was charged with coming up with a recommendation. They got plenty of help from the industry.
In July that group met with the president of the Cruise Lines International Association. According to District Court Judge Lance Walker, the so-called Town Council memorandum of agreement with the industry actually was an instrument profferred by CLIA and accepted by the council as part of a “negotiation,” which Walker put in quotes.
“The proposal, accepted by the Town Council, involved a daily passenger reduction for the shoulder season and a new monthly cap of 65,000 visitors specifically to address concerns of capacity. Although public pressure was growing, the Bar Harbor Town Council, ultimately, was not then constituted to provide the pressure relief that many citizens hoped for,” Walker stated in his ruling.
The town put up little resistance to CLIA. The five council members who voted for CLIA proposal had little appetite for the 1,000-passenger cap which the citizens won at the ballot box.
The so-called MOA proposal Sutherland presented to the council called for a daily cap of 4,000 passengers, a big delta from the 1,000 cap Sidman had already put on the ballot for Nov. 8, 2022.
Sutherland spent the remaining time in September and October lobbying against the citizens initiative.
Undisclosed to the public, Sutherland on Nov. 7, one day before the referendum, authorized 36 cruise ships to be added to the 2024 season.
That was according to documents obtained by the QSJ under the Freedom of Access Act and interviews with authorities. I did not acquire them until April 2023.
The citizens ordinance adopted on Nov. 8 forbade the booking of any ship not in the town reservation queue as of March 17, 2022. Voters strongly rejected the town council’s weaker plan for 4,000 daily limits in a 58- to 42-percent vote (1,780-1,273) and adopted the stricter limits to replace the prevailing practice of 5,500-a-day passengers unloading in town.
The council and chair Peacock have never publicly reconciled Sutherland’s bulk release of ships on the wait list one day before citizens voted. It seemed to be a calculated move on Sutherland’s part to book as many ships as he could before the hammer came down.
Sutherland was unavailable for comment for this article since he was pressured to resign by the Town Council in late January 2023 and agreed to a six-month severance after working for only 13 months.
The most shocking disclosure of Sutherland’s behavior came a week after he left when I published a video of him disclosing to the cruise committee the strategy recommended by the town’s own attorneys defending the town against APPLL and then provided a road map on other ways the town could be sued, all in front of Eben Salvatore, a named plaintiff in the lawsuit who signed an affidavit accusing the town of all sorts of misbehavior.
One observer recorded the entire session, and forwarded it to the QSJ. https://drive.google.com/file/d/12EEyIvWHohnA5DYJG9p8GZr-hAcFxcRd/view?usp=sharing
Councilor Matt Hochman attended the meeting and at no time attempted to stop Sutherland.
Perhaps he has reason to be afraid of being a named defendant in the Sidman lawsuit. I think it would benefit the public discourse to hear Hochman and Peacock’s versions of what happened in 2022 and whether it occurred to them that Sutherland was potentially adding to the town’s liability if it ever had to cancel those reservations?
Without those heavy handed additions by Sutherland, the town would be facing only about 35 grandfathered cruise ship reservations for 2024.
Under testimony, councilors also may testify as to how the town attorney blocked every move by Sidman to be a defendant in the lawsuit, including joining up with APPLL to urge Judge Walker to deny Sidman’s motion. So much for being an “active participant.”
Sidman said he was totally blindside by the council’s March 6 decision to reject unilaterally Judge Walker’s order to implement the citizen’s ordinance.
It will behoove the Superior Court judge assigned to hear the case to understand the saga which is the complete cruise ship history. (Feel free to share this article with the judge’s clerk, dear reader.)
It was disappointing to read Peacock’s carefully edited public statement attacking Sidman without acknowledging her own role of mismanaging the process and the potential, to-be-determined liabilities because of her neglect. She allowed Sutherland to add 68 ships which otherwise might not have been on the 2024 reservations list.
It was disappointing to see the three members who were not councilors at the time fail to ask probing questions and endorse sheeplike Peacock’s public statements on behalf of the entire council.
It was disappointing to see councilors Joe Minutolo and Gary Friedmann, two members who showed courage when they voted against Sutherland’s weak MOA agreements, to suddenly suffer loss of short-term memory.
This lawsuit promises to be a much different case than an argument over whether archaic maritime laws applied to the cruise ship land operations. This lawsuit is about the conduct of individual councilors and administrators. It has the potential to go into many uncomfortable and dark alleys.
I would certainly have no objection to the rebuilding of the swim club as long as no state or federal funds were used in the rebuilding process. Given the increase of great white sharks in Maine waters a swim club kind of makes sense for those who can afford one. Speaking of which has Leonard Leo seen the light? I drove by his place the other day and he has a red flag hanging out front begging forgiveness from the Lord!
Thank you, Lincoln. So disappointing that no one on the council represents the people who voted them in. Minority and corporate rule on a smaller scale but similar to federal rule.