October 31, 2013

Court weighs Portland public’s right to affect plaza sale

A citizens group seeks to save the park – and other open space – with a petition to create a new protective land ordinance.

By Randy Billings rbillings@pressherald.com
Staff Writer

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

click image to enlarge

Gabe Souza/Staff Photographer Congress Square Park in Portland is at the center of a lawsuit over who controls the fate of such public open space.

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.

(Continued on page 2)

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