June 22, 2018
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High court hears arguments in case that could determine fate of Portland’s Congress Square

By Seth Koenig, BDN Staff

PORTLAND, Maine — The Maine Supreme Judicial Court heard arguments on Wednesday afternoon in a case that could determine the fate of Portland’s Congress Square.

The state’s highest court must determine if a fall petition-gathering process — which has already resulted in the placement of a referendum on the city’s June 10 ballot — should be rendered invalid.

Petitioners from the groups Friends of Congress Square Park and Protect Portland Parks are hoping their proposed ordinance change will stay on the ballot and that voters will approve it — draping new layers of protections over a slate of publicly owned properties and jeopardizing in particular the city’s proposed sale of Congress Square to private developers.

“This petition is essentially a people’s veto dressed up as a citizens’ initiative,” city attorney Jennifer Thompson told the supreme court justices Wednesday. “In this case, the petitioners are seeking to undo the City Council’s vote to sell Congress Square.”

The city’s legal team, which appealed a Superior Court ruling to bring the case to the law court Wednesday, has countered that the groups should never have been allowed to gather signatures on the subject.

If the state supreme court agrees, the petition drive could be retroactively invalidated and the referendum wiped off the ballot, preserving the sale, which has sparked impassioned public protests.

The City Council voted 6-3 in September to sell about 9,500 square feet — or 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 was just less than $524,000.

The proposed sale 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’s downtown.

But opponents, including the 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 in September 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.

Cumberland County Supreme Court Justice Joyce Wheeler agreed with the petitioners in an October ruling on the subject, ordering the city to turn over petition paperwork to the groups.

The city appealed that decision to the state’s highest court. City attorneys have 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 the allocation of specific city resources.

The ordinance pursued by Friends of Congress Square Park and Protect Portland Parks seeks would change the city’s Land Bank Commission ordinance to include the embattled park and 34 other properties not currently covered by land bank protections. If passed by voters in June, the ordinance change would be retroactive to early September and effectively force a second citywide vote to ratify the council’s sale decision.

The little public polling that has been done on the issue indicates the sale was unpopular and could be overturned if put to a citywide vote.

Attorney Sarah McDaniel, representing the petitioners, told the high court on Wednesday that the effort couldn’t be considered a de facto “people’s veto” of the council vote, because the sale opponents requested petition papers before the vote took place.

Thompson argued the proposed ordinance change was illegally administrative in nature because it cherry-picked which properties should be placed in the city land bank, a choice that has historically gone through the Land Bank Commission.

“The pieces [of the proposed ordinance change] that put specific properties into the land bank, isn’t that just an end-run around a process that already exists?” Chief Justice Leigh Saufley asked McDaniel.

“Couldn’t you just change the policy to include more urban parks and then let the Land Bank Commission decide which specific properties to include?” added Justice Ellen Gorman. “Wouldn’t that have been a cleaner legislative action?”

McDaniel countered that, since the petition drive gained traction, the City Council — a legislative body — has begun discussing a competing ordinance change that offers new protections for several specific city parks.

“The city cannot have it both ways,” McDaniel said. “It can’t have the action it’s proposing be legislative, while the action the petitioners are proposing be administrative.”

The council’s alternative ordinance, which would allow the Congress Square sale, is meant in part to convince voters hoping for more park protections generally that the petitioners’ referendum isn’t necessary.

Thompson argued the council’s measure is different, because instead of placing more specific properties under the authority of the Land Bank Commission, it accomplishes the goal by increasing the protections in the city’s parks ordinance, where most of the properties in question are already covered.

The Maine Supreme Judicial Court does not make immediate rulings after hearings, and there is no timetable for a decision in the case.


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