July 16, 2019
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High court allows Congress Square Park referendum to advance for June vote

PORTLAND, Maine — Portland voters will get a say in whether the city can sell most of the publicly owned Congress Square Park to private hotel developers.

The Maine Supreme Judicial Court on Tuesday rejected the city’s challenge to a referendum on whether to change the city’s Land Bank Commission ordinance to layer additional protections on Congress Square and 34 other public properties, removing what’s expected to be the final barrier to placing the question on the city’s June 10 ballot.

In its decision, written by Justice Ellen Gorman, the state’s highest court upheld a lower court ruling and rejected the city of Portland’s argument that petitioners overextended their authority by seeking to place specific properties under the more protective ordinance.

City officials only turned over the petition paperwork to the groups Friends of Congress Square Park and Protect Portland Parks in early November — nearly two months after the groups requested it — after a Cumberland County Superior Court justice ordered them to.

“This landmark decision vaults us right toward the June 10 ballot, so let’s get on with it,” said Frank Turek, head of Friends of Congress Square Park and one of the plaintiffs in the court case, in a statement. “The City Council needs to step back and accept the will of its constituents instead of spending so much time and resources working against them.”

City attorneys Danielle West-Chuhta and Jennifer Thompson had argued that such level of detail constituted an administrative action, which is not allowed under the citizens’ initiative process. The city’s legal team argued that a broader proposal — to strengthen the Land Bank Commission ordinance while allowing city’s Land Bank Commission to determine which properties should be listed under the ordinance — would have been legal.

But the court disagreed.

Gorman wrote that while the commission can recommend which specific properties the ordinance should protect, it is the City Council that actually makes the final decision.

“The amendments proposed by Friends would declare a new public purpose: the protection of a new category of open space,” Gorman wrote, in part. “The amendments would also establish the ways and means to achieve that purpose: the immediate inclusion of 35 properties in the land bank and the imposition of a new process for removing any properties from the land bank.

“We are not persuaded that this proposed act should be characterized differently from the original legislative act that declared a public purpose to protect certain types of open space and set forth a process to achieve it,” she continued.

“The city was trying anything and everything to stop the parks initiative, and we’re thrilled that the Law Court saw right through that,” said Robert Levin, one of the Friends’ attorneys, in a statement.

City spokeswoman Jessica Grondin said that while the city disagrees with the court’s decision, Portland officials are “glad” the ruling came “in advance of the election” so there will be no legal ambiguity hanging over the June 10 vote.

“We’re pleased that the people of Portland will now be able to make a clear choice about the future of Congress Square,” Grondin said in a statement. “Today’s decision is about an unsettled area of law in terms of when citizens can propose a referendum. The court recognized that this was an area of law that had not been addressed to date in Maine, and the decision now gives municipalities a precedent to follow and apply as necessary.

“The city has a long history of supporting the right of citizens to petition their government and put forward various ordinances, and plans to continue that tradition moving forward,” she said.

The ordinance pursued by Friends of Congress Square Park and Protect Portland Parks would further require a citywide vote to approve the sale of any of the land bank properties — unless a supermajority of the City Council, or eight of the nine members, votes to sell.

If passed by voters in June, the ordinance change would be retroactive to early September, and it would effectively force a second citywide vote to ratify the council’s Congress Square Park sale decision.

In this case, the council voted 6-3 in September to sell nearly 9,500 square feet of the plaza for nearly $524,000 to Ohio-based private developers RockBridge Capital LLC. RockBridge helped finance the nearly $50 million renovation of the historic former Eastland Park Hotel nearby and hopes to use the additional Congress Square space for an event center.

The little public polling that has been done on the issue indicates the sale was unpopular.

Facing the looming June referendum, the City Council also has in recent weeks passed a slate of alternative ordinance changes that would protect many of Portland’s public spaces — including Deering Oaks Park and the Eastern Promenade — against sales but allow the Congress Square deal to advance.

“The city of Portland has been incredibly proactive in terms of dedicating and protecting its park space for its citizens and visitors,” Grondin said. “The city has substantial existing protections in place for its parks — and the recent parks ordinance that the City Council adopted doubly ensures those protections.”

Supporters of the sale, including the Portland Community Chamber, have 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 the park was only underused because the city let it fall into disrepair.

City Councilor David Marshall, one of the three who voted against the sale, said Tuesday he hopes the city would no longer pursue the Congress Square sale if the petitioners’ referendum passes.

“When the voters do pass the initiative, I would think it would be a strong enough signal to both the city and the developers to take a different approach to the park,” Marshall said. “I’d like to see the city make the appropriate investment in the park like we’d planned all along. Since 2005, I’ve been part of the effort to revitalize the square.”

Tuesday’s decision represents the second time this year the state’s highest court has dealt the city of Portland a legal defeat. In February, the Maine Supreme Judicial Court ruled a city ordinance banning panhandlers, demonstrators and others from standing in median strips infringed on those peoples’ constitutionally protected rights to free speech.

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