Justice Joyce Wheeler could soon decide the fate of Congress Square Plaza.

The battle over Congress Square Plaza got its day in court on Wednesday.

And a judge could decide Thursday whether voters will get the final say on the pending sale of much of the downtown park.

The lawsuit stems from the City Council’s controversial vote to sell most of the nearly half-acre open space at the corner of High and Congress streets to an out-of-state developer.

At issue in court, however, is the city’s rejection of a petition effort by the Friends of Congress Square Park to set new standards for the sale of certain open spaces, a move that could protect the downtown plaza and 34 other spaces from being sold.

Jennifer Thompson, a city attorney, argued in Cumberland County Superior Court Wednesday that the sale and acquisition of public lands are not subject to citizen initiatives or vetoes because they are administrative actions and appropriations and the responsibility of the council.

“It’s a very dangerous precedent to grant powers that the voters simply don’t have in the first instance,” Thompson said.

Attorney Sarah McDaniel, who represented the friends group, called the city’s position “absurd.” She said the City Council ultimately decides through a legislative process what properties to protect and what properties to sell, making such decisions appropriate for the citizens initiative.

“It is completely absurd to construe this as an appropriation,” McDaniel said.

McDaniel accused the city of denying the petition because it might have affected the council vote to sell a specific property – Congress Square Plaza. Such a decision violates the First Amendment right to free speech, she said.

She also took aim at the claim that management of land assets is considered an appropriation, which would shield it from a citizens initiative, saying that every other reference to appropriation in the city code involved the expenditure of money.

Justice Joyce Wheeler spent much of Wednesday’s hour-long hearing questioning the city over its position. Wheeler said she expects to render a decision by noon on Thursday.

Wheeler seemed sympathetic to the plaintiff’s arguments, especially the impact the city’s decision has on citizens’ First Amendment rights.

“I see a great value in the discussion aspect of the First Amendment, and that’s being cut off completely here,” Wheeler said of the city clerk’s decision not to issue petition papers.

The lawsuit is being brought by four plaintiffs, all Portland residents: Frank Turek, David LaCasse, Patricia O’Donnell and former state Rep. Herb Adams.

Last month, the City Council voted 6-3 to sell about two-thirds of Congress Square Plaza, at High and Congress streets, for $523,640 to Rockbridge Capital, the company that is redeveloping the adjacent Eastland Park Hotel.

The Ohio-based company plans to build an art gallery and events center on the site. It plans to reopen the hotel in December as the Westin Portland Harborview Hotel.

The City Council’s decision came after more than a year of negotiations and hours of passionate – and at time raucous – public testimony to save the park. Two council meetings leading up to the sale were interrupted by protesters and one person was arrested.

The Friends of Congress Square Park filed an affidavit for a citizens initiative on Sept. 7, well before the council vote Sept. 16 vote to sell the plaza.

The group’s petition calls for increased protections for 35 open spaces. The city rejected the petition application, saying voters cannot overrule council decisions on land sales.

Because the affidavit was filed before the council’s vote to sell the plaza, that sale could potentially be affected if the petition moved forward and voters ultimately approved the changes.

Thompson, the city’s attorney, argued in court that granting the petition papers would nullify the sale. McDaniel disagreed, saying it would only create “procedural hurdles” for the sale to go through.

Currently, it only takes a majority vote of the nine-member council to sell open space, unless the property is designated as part of the city’s land bank. For the sale of land bank properties, six votes are needed.

The change sought by the petition would put Congress Square Plaza, along with 34 other public spaces, into the city’s land bank. It would also require a vote of eight councilors to sell protected open spaces outright. If only six or seven councilors support selling a land bank property, the sale would have to first be put to voters in a citywide referendum.

If Wheeler sides with the friends group, they would still have to collect 1,500 signatures to put the ordinance change to voters. If voters approve, the city would then have to put the sale of Congress Square Plaza to voters, since only six voters supported it.

The poll conducted by Raleigh, N.C.-based Public Policy Polling last month surveyed 507 Portland residents about the sale ahead of the council’s vote. Nearly half – 49 percent – oppose the sale, 34 percent supported it and 17 percent weren’t sure.

Randy Billings can be contacted at 791-6346 or at:

rbillings@mainetoday.com

Twitter: @randybillings