Judge allows petition drive against Portland sale of Congress Square lot to move forward

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
Posted Oct. 31, 2013, at 1 p.m.
Last modified Oct. 31, 2013, at 3:15 p.m.
Congress Square Park in Portland.
Congress Square Park in Portland. Buy Photo

PORTLAND, Maine — A petition drive seeking to challenge the controversial sale of Portland’s Congress Square Park to hotel developers will be allowed to proceed, Cumberland County Superior Court Justice Joyce Wheeler ruled Thursday.

Wheeler also refused to issue a stay pending appeal in the case, as sought by the city of Portland, which would have prevented petitioners from collecting signatures until the city appeals the ruling to the Maine Supreme Judicial Court. That allows the citizens group Friends of Congress Square Park to take advantage of the foot traffic at the polls on Tuesday, Election Day, in circulating petition forms.

Wheeler directed city officials to make the signature-collection paperwork available to the Friends of Congress Square Park by 3 p.m. Friday. The group must collect 1,500 valid signatures to place the question on a municipal ballot, which the group hopes will go to voters in June 2014.

The ruling represents a significant victory for the citizens group in the ongoing battle over the proposed sale of 9,500 square feet of the publicly owned space.

“The court’s ruling sends a strong message to City Hall,” Frank Turek, president of the Friends and a plaintiff in the case, said in a prepared statement. “They can’t reject a petition simply because they don’t agree with its substance.”

Danielle West-Chuhta, the city’s top attorney, confirmed Thursday afternoon that Portland will appeal the ruling.

“Upon review of the decision, and based upon our understanding of the case law, our office remains convinced that the city of Portland’s position is correct,” West-Chuhta said in a statement. “We are currently completing the required appeal documents including a request for a stay of the judge’s decision, and we plan to have our filings submitted as soon as possible. Given the ongoing legal process and the complexities surrounding this matter, it is difficult to determine the impact, if any, of this decision on the sale of Congress Square.”

The City Council voted 6-3 on Sept. 16 to sell about two-thirds of the 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 — the basic terms of which have been agreed to, but which has not been finalized — has been the subject of fierce debate.

Supporters, including the Portland Community Chamber, said 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 case landed in court after the citizens group was told last month by city officials that its petition drive would not be recognized. The Friends group filed a lawsuit against the city, challenging the municipality’s determination that the sale opponents overreached in their proposed ordinance changes.

Friends of Congress Square Park sought to collect signatures to force a referendum vote on whether the city’s Land Bank Commission ordinance should be changed to include the embattled park and 34 other properties not currently covered by land bank protections. If passed by voters, the ordinance change would be retroactive to early September and effectively force a second citywide vote to ratify the council’s sale decision.

If a September poll by the national firm Public Policy Polling is to be believed, the sale would likely be rejected by voters if the decision is left to them. Forty-nine percent of respondents said they opposed the transaction while 34 percent approved, while 56 percent of the people surveyed said the proposed sale price is “too low.”

But the city clerk and city attorneys argued the citizens’ petition process could only be used to force legislative actions — policy changes not tied to specific scenarios or applications of law — while the Friends’ proposal was administrative or affected city appropriations.

Wheeler disagreed Thursday in her ruling on the subject. She also rejected the city’s claims that the petition, if successful, would constitute an invalid people’s veto, and that it would infringe upon the City Council’s right to regulate municipal appropriations.

The case is now expected to be appealed to the Maine Supreme Judicial Court, where the issue will be decided once and for all.

Jennifer Thompson, assistant corporation counsel for the city of Portland, told Wheeler on Wednesday if the referendum is successful, it will effectively “nullify” the council’s decision to sell the park.

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