January 23, 2018
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One error may correct another in Portland referendum snafu, city says

By Jake Bleiberg, BDN Staff
Updated:
Seth Koenig | BDN | BDN
Seth Koenig | BDN | BDN
The Portland City Hall clock tower is shown in this Bangor Daily News file photo.

PORTLAND, Maine — City staff believe that a newly discovered legal error from 2011 may allow them to overcome another mistake that came to light earlier this week and threatened to block two citizen referendums from being voted on this fall.

On Monday, after Portlanders submitted the thousands of signatures required to put two initiatives on the ballot, the city announced that a scheduling error made by the city clerk’s office would mean that the questions related to renting and development couldn’t come up for the vote in November.

The issue was timing. Under what staffers initially took to be a city ordinance, an initiative can be placed on the ballot no fewer than 90 days before an election. Before that happens, the city clerk has to validate the signatures in support of the question and the City Council must schedule a hearing on it and give 10 days notice of that hearing.

The city clerk’s office initially told the two groups submitting signatures that filing them on Monday, 93 days before the election, would allow them to be placed on the ballot. But realized later that day that this didn’t meet the timeframe set out in the regulations.

Now, the city is saying the 90-day ordinance may never have rightly been in effect.

While working to find a way to get the two initiatives on the ballot, staff discovered that the 2011 ordinance specifying a 90-day timeframe was never “ratified by the citizens through a referendum, as is required by the Maine Constitution,” according to a statement from spokeswoman Jessica Grondin.

Because of this freshly unearthed mistake, it may actually be a 1991 ordinance that is in effect, Grondin said. That ordinance says that initiatives can be placed on the ballot as few as 60 days before an election.

The city council will hold a workshop as soon as possible to look at ways to get the two questions on the November ballot, according to the statement. One initiative was over enacting rent controls and the other was about giving neighborhood residents more say over rezoning.

“We remain truly sorry for this unintentional error,” Grondin said. “Since uncovering the error, the city clerk’s office and the [the city’s lawyer] have been working extra hours to validate the signatures and to find solutions that would allow this to go forward as planned.”

A representative for Give Neighborhoods a Voice, the group behind the initiative to allow local residents to stop nearby zoning changes, said in a statement that it’s hard to find solace in a solution that turns on an apparent constitutional violation.
But the city also has a backup plan.

If the first fix doesn’t work, the council could approve the two proposed ordinances, but give them a delayed implementation date, according to the statement. It could then put the two referendums on the ballot as “advisory questions” and then use the results to decide whether or not to keep the ordinances.

“While we have not yet completely finished this research and collected all of the information necessary, we realize the importance in providing this update to the petition groups who worked so hard to follow the process that was outlined to them,” Grondin said. “The goal of the council workshop is to relay all of this information in an open and transparent forum and to explain how this error occurred.”

A spokesman for Fair Rent Portland, which put forward the rent control initiative, said the group is waiting to hear from the city directly but is “excited to hear that the council may have found a solution.”

Under the Fair Rent Portland proposal, limits would be placed on annual rent increases on existing leases in bigger buildings, tied to the Consumer Price Index — about 2 percent per year.

A representative of Give Neighborhoods a Voice said in a statement issued before the city announced its possible solutions Thursday that it is worried that irregularities in the referendum process will expose any approved measures to legal challenge.

The Give Neighborhoods a Voice measure would, if passed, allow 25 percent of the registered voters who live or own property within 500 feet of a proposed zoning change to block it. Developers could override the neighborhood veto by getting approval from at least 51 percent of registered voters within 1,000 feet of their project, under the measure.

After reviewing what the city had proposed in its statement, Eva Polin said her group remains worried.

“It is difficult for citizens to have confidence that a valid and legal solution is being proposed when it hinges on the city claiming that the referendum provisions that the City Council has previously enacted are unconstitutional,” Polin said in a written statement,

 


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