Portland’s city attorney told the Maine Supreme Judicial Court on Wednesday that citizens don’t have the legal right to a referendum that could overturn the sale of most of Congress Square Plaza.

The Friends of Congress Square Park have collected more than 4,000 signatures to put a proposed ordinance on the November ballot that might do just that. The group argued in court Wednesday that citizens have a clear right to establish policy for sales of public land.

Justices peppered both attorneys with questions during the hearing, with most of the scrutiny focused on the city’s position. The court didn’t reach a decision or set a timetable for issuing its ruling.

At stake is whether Portland voters will have a chance to decide on a proposed ordinance that would add 35 properties to the city’s Land Bank and make it harder for the city to sell any of those properties for development. Congress Square Plaza is among the properties, so approval of the restrictions could invalidate the City Council’s decision in September to sell it to a developer.

The supreme court case will likely turn on whether the justices deem the referendum initiative a legislative measure or an administrative action. Citizens initiatives can affect only legislative, or policy, matters, not administrative actions that a city takes to implement those policies.

The court’s decision could be influenced by recent steps by the Portland City Council to adopt a less restrictive ordinance, which would protect many of the same properties as the citizens initiative but exempt Congress Square Plaza.

On Wednesday, Sarah McDaniel, who represents the Friends of Congress Square Park, argued that the council’s steps prove that the citizens initiative is a legislative matter, appropriate for a referendum.

On Monday, the council held a first reading of its proposed ordinance. Instead of protecting properties through the Land Bank, the ordinance would create a new designation in the city’s parks ordinance.

Only seven votes on the council would be required to sell the properties under the council’s proposal, whereas the citizen initiative would require approval from eight of the nine councilors. If six or seven councilors supported a sale, under the citizens proposal the question would be put to voters.

McDaniel argued that the council is using a legislative action to protect specific properties, and that the citizens group is essentially trying to do the same thing.

“The city has proposed ordinance enactments that effect very similar policies,” McDaniel said. “The city simply cannot have it both ways.”

Jennifer Thompson, a city attorney making her first appearance before the Maine Supreme Judicial Court, conceded that elements of the citizens initiative are appropriate, such as changing the voting thresholds to sell protected lands.

But the initiative oversteps its authority by proposing a specific set of lands to be added to the Land Bank, she said. Under the current ordinance, the Land Bank Commission can recommend additional properties to the City Council, which has the final say.

“They circumvented that process entirely and are unilaterally are trying to place these properties into the Land Bank without going through the process that exists,” Thompson said.

The citizens initiative grew out of the City Council’s decision to sell two-thirds of Congress Square Plaza for $523,000 to Rockbridge Capital, the Ohio-based developer that bought and renovated the former Eastland Hotel into the Westin Portland Harborview Hotel. The hotel plans to build an event center on the site.

Opponents of the sale launched the signature drive to force a referendum.

Portland officials initially refused to provide the group with official petitions, but the group sued in Superior Court and won the right to collect signatures. The city appealed that decision to the supreme court.

If the court rules in favor of the group, and if voters approve the ordinance, the new thresholds will be applied to the council’s vote to sell the plaza. That would effectively undo the sale, because the sale was approved by a 6-3 vote.

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

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