PORTLAND, Maine — A Superior Court justice has ruled that Portland’s City Council made a mistake when it approved a rezone that would have allowed an Australian businessman to move his company’s headquarters into a historic former West End church.
Judge Joyce Wheeler’s decision — that allowing a proposed commercial use in what’s otherwise a dense residential zone stretched Portland’s “home occupation” guidelines too far and differed too much from the neighborhood’s zoning — deals a significant blow to Frank Monsour’s plan to make the 19th century former Williston-West Church at 32 Thomas St. the new American home base for his mobile data systems company, Majella Global Technologies.
Opponents of the plan hailed the ruling as a major victory, while Monsour’s attorney said Monday he remains committed to using Maine’s largest city as his U.S. headquarters despite the setback.
The council voted 6-3 in 2012 in favor of the rezone to allow the office space in the R-4 residential zone in question. A group of 12 neighborhood residents then filed a lawsuit in July of that year contesting the decision, which would have opened the door for Monsour to convert the parish house into a personal residence and 2,800 square feet of office space to accommodate 14 employees.
But Wheeler ruled that provisions on the books that allow “home occupations” cannot be stretched to include an operation like the one Monsour hoped to run in the former church.
“The home occupations use explicitly limits the scale of the business because only one non-resident employee is permitted,” Wheeler wrote in her decision. “Majella’s proposed office space would allow up to 14 non-resident employees at one time. This is a substantial increase in the number of employees and it is not ‘so limited as to be compatible’ with other residential uses in the zone as required for home occupations.”
The judge also rejected city arguments that the rezone complied with calls in the comprehensive plan to preserve historic buildings and promote job creation, saying owners of historically protected structures must maintain them even without a rezone, and that there is commercial space elsewhere in the city to accommodate Majella without disturbing the West End residential zone.
Majella currently leases space in the Time and Temperature Building in Portland’s downtown, according to court documents.
“This was a wildly unpopular thing in the neighborhood in the West End,” said Patrick Murphy, one resident who opposes the project, on Monday. “[The court decision] is big. I think the general impression was that we had a 50-50 chance, but not only did [plaintiff and attorney Orlando Delogu] and his crew win the challenge, but it was a pretty strongly worded ruling from what I understand. We feel good about it.”
Mary Costigan, an attorney with the Portland law firm Bernstein Shur representing Monsour, told the Bangor Daily News on Monday it will be up to the city of Portland to decide whether to appeal the ruling to the Maine Supreme Judicial Court. She said she has spoken to Monsour since the ruling was officially handed down on Dec. 31.
“In terms of any statement, he wanted folks to know that the Monsour family is still very invested in Portland, and that any current use of the building is in accordance with current zoning,” she said. “They’d been waiting for the results of the court case before taking any steps forward with the project.”
“The city is disappointed with the court’s decision and is still determining whether or not it will appeal,” Danielle West-Chuhta, corporation counsel for the city, said in an email to the BDN on Monday afternoon.
Wheeler’s decision represented the third time in about two months that she dealt the city of Portland a legal defeat. In a pair of decisions in late October and early November, respectively, Wheeler first ruled that the city was wrong to reject a petition drive opposing the controversial sale of the publicly owned Congress Square Park to private hotel developers, and then ordered city officials to turn petition paperwork over to the petitioners before the city’s appeal of the case played out.
City attorneys at the time had hoped to delay the petition gathering process until they had a chance to challenge Wheeler’s initial decision before the Maine Supreme Judicial Court, but the judge denied that motion.
The Williston-West Church was active as a place of worship from 1877 until 2011, according to court documents, and was put on the market in 2011 after its congregation merged with that of the Immanuel Baptist Church. The building is on the National Register of Historic Places.