PORTLAND — Planned development along Somerset Street could be headed for a court battle after the Zoning Board of Appeals upheld the city’s denial of a building permit application.

By a unanimous vote, with member Benjamin McCall recused, the board agreed the site plan approval had expired, nullifying the building permit application filed by Federated Cos. in March for a parking garage at 59 Somerset St.

Attorney Patrick Venne, representing Federated, argued the expiration date should be applied from when the conditions accompanying the approval were met.

“You can’t have a timeline run from the approval if the approval is conditional,” Venne said.

The board disagreed as member McCall recused himself from the hearing and vote because he works for Bergen Parkinson, the law firm that has been representing the city in the process.

“The fairly plain meaning to me of the ordinance … is that it doesn’t make any kinds of distinctions on approvals,” ZBA chairman Eric Larsson said.

Venne had already threatened the city with a breach of contract suit over the long-planned project to be built on 2.4 acres Federated bought from the city for $2.4 million.

“We disagree with the Board’s decision, but it was anticipated,” Venne said in an email Tuesday. “It was nevertheless necessary to move through this process in order to exhaust available administrative remedies.”

Director of Permitting Michael Russell denied the building permit application on March 27, in part because Federated had not posted a performance bond for the project and because it had not paid the required $84,200 in fees related to a needed traffic movement permit and the city’s street tree requirements.

Venne argued the performance bond requirement was waived as a part of the conditional approval and Federated had paid and then asked for the return of the $84,200.

The bond and fees were considered secondary by all parties in the appeal process, the expiration date for the site plan approval was the central argument.

“There is no and can be no dispute that the conditional approval issued by the Board constituted a final decision under the City’s Code and applicable Maine law,” Associate Corporation Counsel Jen Thompson said in a June 15 memo to the appeals board.

The Planning Board first approved a redevelopment plan on the land extending from Pearl to Elm streets in 2013, which resulted in a suit against the city by project opponents.

A scaled-back site plan calling for 440 housing units, a garage and 90,000 square feet of retail space was then approved March 17, 2015, though developers were asked to bring back some elements of design for additional review. Those were approved eight days later.

The city twice extended the deadline for Federated to begin work, with the last expiration date set at March 25.

The estimated $9 million garage is intended to be the first step in the project, and would ultimately be paid for by the city. Its construction would also trigger the process of elevating Somerset Street above the projected floodplain. That estimated $4 million project would be funded with about $2.7 million from the city and the remainder from Federated.

David Harry can be reached at 781-3661 ext. 110 or dharry@theforecaster.net. Follow him on Twitter: @DavidHarry8.

The vacant land at 59 Somerset St. is intended for use as a parking garage for the Midtown project. On June 21, the Portland Zoning Board of Appeals sided with the city after it rejected the building permit application made in March.

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