Judge will rule on lawsuit over Portland’s Congress Square Park by noon Thursday

Posted Oct. 30, 2013, at 3:59 p.m.
Representing the City of Portland in the matter of the sale of Congress Square Park at Cumberland County Superior Court Wednesday morning, Associate Corporation Counsel Jennifer Thompson (left) speaks to Corporation Counsel Danielle West-Chuhta.
Representing the City of Portland in the matter of the sale of Congress Square Park at Cumberland County Superior Court Wednesday morning, Associate Corporation Counsel Jennifer Thompson (left) speaks to Corporation Counsel Danielle West-Chuhta. Buy Photo
Justice Joyce Wheeler hears arguments in Cumberland County Superior Court Wednesday morning concerning the sale of Congress Square Park.
Justice Joyce Wheeler hears arguments in Cumberland County Superior Court Wednesday morning concerning the sale of Congress Square Park. Buy Photo
Attorneys Sarah McDaniel and Robert Levin, represent Friends of Congress Park in Cumberland County Superior Court Wednesday morning.
Attorneys Sarah McDaniel and Robert Levin, represent Friends of Congress Park in Cumberland County Superior Court Wednesday morning. Buy Photo

PORTLAND, Maine — A Cumberland County Superior Court justice said she will rule by midday Thursday whether she’ll allow the advancement of a petition effort seeking to — as the city of Portland contends — “nullify” the controversial sale of Congress Square Park to a private hotel developer.

Attorneys representing the city and the citizens’ group Friends of Congress Square Park made oral arguments before Superior Court Justice Joyce Wheeler Wednesday morning in the Cumberland County courthouse in Portland.

The City Council voted 6-3 on Sept. 16 to sell 9,500 square feet of the publicly owned park to RockBridge Capital LLC, which plans to add conference space to the adjacent former Eastland Park Hotel. The sale price is just less than $524,000.

The proposed sale, which has not been finalized, touched off a firestorm of debate, with supporters — including the Portland Community Chamber — saying the project would revitalize a long underused part of the city downtown.

But opponents, including the newly formed Friends group, said the deal sets a bad precedent of selling public space to private entities and that the park was only underused because the city let it fall into disrepair.

The citizens’ group is now hoping to collect signatures to force onto a citywide ballot a referendum seeking changes to the city’s Land Bank Commission ordinance. Those changes, which are proposed to be retroactive to early September, would place 35 additional publicly owned properties — including Congress Square Park — under the protection of the ordinance, effectively triggering a second citywide vote to ratify the City Council’s September decision to sell the space.

The city denied the Friends petition drive last month, arguing the referendum would be seeking an administrative action or appropriation of city resources, acts that cannot be forced through the petition process. Citizens’ petition can only be used for so-called legislative actions, such as policy changes not specific to particular scenarios.

“You can’t infringe on a right that doesn’t exist in the first place,” Jennifer Thompson, associate corporation counsel for the city of Portland, told Wheeler during Wednesday morning’s hearing. “If you’re going to put out any administrative task to a people’s veto, you’d never get anything done.”

The citizens’ group, represented in court Wednesday by attorney Sarah McDaniel, argued that its effort to change the ordinance was not a people’s veto, as the Friends sought petition papers from City Hall more than a week before the council vote to sell the property.

Thompson didn’t dispute the timing, but did dispute the group’s intentions.

“This effort is pretty clearly … a people’s veto dressed up as a citizens’ petition,” Thompson said. “I don’t understand how they could dispute that this was intended to undo an act of the City Council.”

McDaniel told Wheeler that changing a broad city ordinance definition and adding 35 properties to its protective coverage is a legislative act, not one that allocates city funds or constitutes a case-by-case application of the ordinance — which could be seen as “administration.”

McDaniel said the city wants to prevent a referendum on the issue because it knows public sentiment is against the move.

In a poll on the sale released last month by the national organization Public Policy Polling, 49 percent of respondents said they opposed the transaction while 34 percent approved.

Only 33 percent of respondents said the proposed sale price is “too high” or “just right,” while 56 percent said it is “too low.” Sixty-three percent of survey respondents said they wanted the sale to be decided at the polls by a citywide referendum.

“The city is not entitled to stifle us bringing this question to the voters just because they don’t like the answer,” McDaniel said.

At the behest of the Friends group, which hopes to be allowed to collect signatures at the polls on Election Day Tuesday, Wheeler said she plans to issue a ruling on the subject by noon Thursday.

Thompson told Wheeler she is seeking a stay pending appeal, a legal move that would block the collection of signatures until all appeals play out. Thompson said she plans to appeal the ruling to the Maine Supreme Judicial Court if Wheeler finds in favor of the Friends group.

Whether or not to grant the stay also will be up to Wheeler.

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