PORTLAND, Maine — Facing another lawsuit over development, city officials and business leaders say the aggressive efforts of residents to fight recent construction projects could slow the building boom in a city that’s trying to grow.
Late last month, a group calling itself Friends of the Motherhouse filed suit to overturn City Council approval of a 249-unit housing proposal at the site of the historic Sisters of Mercy Motherhouse and Catherine McAuley High School sports fields. The group argues the construction’s scope would buck the character of the surrounding neighborhood.
That’s just the latest in a series of high-profile fights over large development proposals since 2007, pitting neighborhood groups and local activists against developers in the courts and at the ballot boxes.
“There’s [the city’s permitting] process, and then there’s this extra judicial piece where people are just doing whatever they can to stop projects,” said Chris Hall, CEO of the Portland Regional Chamber of Commerce. “We need development, we need expansion of the property tax base, not just because it makes a few people rich, but because we need the revenue for our schools and our infrastructure.”
But those battles are just a symptom of a flawed planning and permitting system that doesn’t do enough to encourage public input on controversial projects, many neighborhood advocates say — and Portland needs to protect its scale and character to attract future development.
“I think that having engaged citizens and having citizens care about the quality of place in Portland is what makes Portland so desirable, driving up property values and making it such an attractive place to develop,” said Bree LaCasse, whose group, Friends of Congress Square Park, successfully reversed the sale of the public square to private hoteliers.
Nobody, it seems, relishes the process. Both supporters and opponents of recent major projects seem to agree that the city’s development guidelines need to be overhauled so these regular disputes can be avoided as Portland continues to grow in the coming years.
Portland, meanwhile, is in the midst of a well-documented housing crisis — one in which residential vacancy rates are reportedly between zero and two percent, pushing rents up more than $500 per month beyond what average city tenants can pay.
[MORE: Portland wants another 15,000 people by 2030. What do its residents want?]
The Motherhouse case follows several recent high-profile fights over developments, including the proposed sale of Congress Square, and the lawsuits that slowed and shrank the Midtown project in the Bayside neighborhood and stalled the reuse of the historic Williston-West Church through 2014. And one citywide referendum last year sought — unsuccessfully — to restrict how the waterfront Portland Company complex on Fore Street could be redeveloped.
“It’s been going on for years and years. What do you do about it?” posed John Napolitano, president of the Portland-based Maine State Building and Construction Trades Council. “You’re not going to stop progress, but you want to preserve the nature of what the community is.”
The Urban Renewal movement in the 1960s — an out-with-the-old-in-with-the-new approach that famously toppled the city’s historic Union Station in favor of a strip mall and flattened residential blocks to make way for multi-lane throughways — is what can happen when citizens aren’t vigilant about fighting for their quality of place, said Tim Paradis.
Paradis is one of the founders of the citizens’ group Keep Portland Livable, which formed three years ago in opposition to the massive Midtown proposal for the city’s Bayside neighborhood.
“Portland has a chance to lift itself up economically because it has this outstanding regional, national and even international profile. If we don’t pay attention to its … historic charm and character, we will chip away at that profile and ultimately kill the golden goose,” Paradis said. “I’ve seen lots of pictures of downtown Portland [before Urban Renewal]. It wasn’t just the train station. Whole neighborhoods were razed — the kinds of houses that are now being renovated to provide high-end housing elsewhere in the city.”
Prohibition or preservation?
In 2007, developer Jeffrey N. Cohen sought to build a $31 million, 12-story, 94-unit condominium project on the undeveloped 409 Cumberland Ave. lot, but the owners of the neighboring 15-story Back Bay Towers sued to block the project, saying it would hamper their tenants’ views and decrease their property values.
Cohen successfully defended his project in court, but it was too late. The legal battle stalled construction long enough for what’s now known as the Great Recession to take hold and undermine the financial viability of the project.
Portland City Manager Jon Jennings said he worries developers will start taking their business elsewhere, to places where the permitting and approval processes are more predictable.
“I think for most developers who are looking to do anything of any scale, what they’re looking for the most is some certainty of process. Because at the end of the day, they’re spending a lot of money,” he said. “So when you get into these situations where people are turning to lawsuits and anything else they can do to disrupt the process … [developers] get concerned about that.”
Those who have fought to change or stop projects, though, argue that the city’s ongoing development boom proves fears about citizen activism becoming a deterrent are overblown.
There have been some high-profile referendums and lawsuits, but there have been many more projects that have been approved and built uneventfully, they say.
“The idea that Portland has become unattractive to developers, that idea is belied by the extraordinary level of development going on block-by-block around Portland — new hotels, condominiums, housing,” said Paradis. “This is a wave of development that I think is the greatest in Portland’s history. It doesn’t seem to be diminishing. Naturally developers would prefer to have no hoops to jump through at all, but that’s not what’s going to sustain a city that its residents and all its stakeholders deserve.”
[MORE: Read our special project from 2014 on a changing Portland]
Fixing the process
Even those who have turned to the courts in opposition to certain kinds of development largely agree that the legal system isn’t the place for municipal planning.
But there’s stubborn disagreement over who or what is to blame for making it go that far.
Project opponents over the years have argued their lawsuits wouldn’t have been necessary had city officials been more considerate of their concerns and applied good planning principles. City officials counter that their permitting processes are fully inclusive, but that opponents just can’t accept honest planning decisions that don’t go their way.
“I chafe at the narrative that the city doesn’t listen. I think the city does listen. There’s an enormous amount of public dialogue, there’s a robust review process, and sometimes we just don’t fundamentally agree at the end of the day,” said Jennings. “It’s not that the city doesn’t listen, but the city may not agree. So when people resort to lawsuits and other delaying tactics, I think that’s problematic for the city and for developers.
“Even when we have these very public meetings and discussions, there are some people who simply don’t trust the government and will go to any means necessary to achieve their desired outcomes,” he continued.
Gray areas in the comprehensive plan and city zoning ordinances provide fertile ground for legal arguments as well, and one byproduct of the city’s tumultuous development landscape is growing support for a rewrite of the plan and any zoning language that supports it.
As it stands, critics say, the comprehensive plan is a wide-ranging document that can be used to justify almost anything, including opposite sides of the same development proposal. If “everything to everyone” quality doesn’t create conflict, it at least fuels it, they say.
In the case of Bayside’s Midtown, for instance, the developers touted the project’s fulfillment of the plan’s call for dense housing and an ambitious reuse of the underutilized former scrapyards, while opponents said it bucked the plan’s call for “a small-town feel” and smaller neighborhood blocks in the area.
A group calling itself Portland Participates has begun forming around the idea that the city should follow through with an inclusive, facilitated process to document a clear vision for Portland that’s sensitive to the respective characters of its neighborhoods and appealing to a wide cross section of residents can support.
Such an overhaul of the comprehensive plan would be time consuming, but supporters argue it would significantly smooth out the pathways to development moving forward.
“In my memory, we have been stuck in this loop of people objecting to projects since the mid-1980s. If you tell me it’ll take another two years to build durable consensus around economic development in Portland? I’m in,” Hall said.
Kara Bensen, a Portland-based representative of the regional planning consultancy firm the Principle Group, said the key is getting the community on board with the overall vision for the city.
“When you have an engaged community, that’s a good thing, but it’s not necessarily a good thing when the citizenry is engaged in a reactionary way and not in a proactive way,” she said. “The cities that are successful are the ones that engage their citizens very early in the process and develop a common vision for development across the city. It doesn’t have to be a confrontational, case-by-base, project-by-project scenario.”
Bensen suggested it may not be necessary to hold drawn-out meeting marathons over several months for the city to approve each individual project of any scale if the city had wider public buy-in on the guidelines being used to regulate development.
“It’s always going to be a messy process, but ideally you can get your planning going and create a sense of trust between citizens and their government, and build a clear and open process in which citizens can be heard early on,” she said. “No one wants to go to two years’ worth of meetings. I want to know that the overall vision for the city, as conceived by all of us, is something I fundamentally agree with and that I don’t have to worry as much about each project that comes up.”