Wednesday, March 19, 2014

Portland vs. Her People: Fighting over the possible futures of Maine's largest city

Published in the Portland Phoenix

Beneath the deep rifts of disagreement about how Portland should grow, change, and develop, there lies one underlying point of concord: The city is increasingly attractive to a wide range of people and businesses, and therefore is uniquely poised to have options about how its future will be built. And there’s another, related area of agreement: Nearly all the players in the ongoing land-use disputes in the city (including municipal leaders) share a list of goals, which include more housing that is more affordable, preservation of historic assets, celebration of unique attributes of the city’s landscape and architecture, and the pivotal importance of energizing the downtown — including but not just maximizing use of open space.
But when faced with choices about how to achieve those goals, Maine’s largest city has of late suffered a gigantic split, between City Hall and the people themselves. And most of these conflicts are similar in one root element: This city, which all agree is lucky to have so many options, has leaders who do not behave as if they have any choice at all. To the frustration of the citzenry, the City Council and the Planning Board often run off with the first partner who asks for a dance.
Sometimes there’s no real controversy, as with the new hotels sprouting around the downtown, the $60-million renovation of the Eastland Park Hotel, or the $110-million redevelopment of Thompson’s Point. But when there is disagreement, a pattern has emerged: citizen outcry builds, corporate interests flex their muscles, the city stands its ground, lawsuits swirl, and the future of Portland gets decided not through a participatory process ending with a majority vote, but in adversarial courtroom hearings before a judge who will make a decision alone.
The most notable issues exemplifying this pattern are the potential sale of Congress Square Plaza, the repurposing of the former Williston-West Church, and the massive Federated “Midtown” housing development in Bayside (see sidebar, “Timelines”). All three have been subjected to long, contentious hearings before the City Council and the Planning Board, as well as several lawsuits, which the city has a track record of losing (see “Legally Blind,” by Al Diamon, February 28).
The projects are different in their details, but looking at their processes is revealing, and worrying. There are interdependent problems, and even if they are solved, the three projects at the center of the current storms are likely lost to litigation forever. That said, a closer look at what ails Portland could help us avoid future maladies.
Diagnosis #1: Bad timingThe first, and perhaps truly the biggest, underlying problem is not a lack of citizen involvement. Ask anyone — board member, citizen, or reporter — who was at any of the multi-hour municipal meetings about these projects.
It’s that the involvement comes too late in the process to really make a big difference. Planning Board member Jack Soley puts it best: “At the eleventh hour it’s difficult to give public testimony as much weight as it is earlier in the project....Their voice will carry more weight at the early stages.”
Projects that come before the Planning Board have already been reviewed by city planning staff, and often outside experts, such as traffic engineers and stormwater engineers, but there’s still lots of time to make changes. Soley, a developer himself (the hotel on Fore Street is his) whose father is notorious Old Port landlord Joe Soley, says the Planning Board tries “to improve on what the developer has brought to us,” within the standards set by the City Council’s ordinances.
While citizen input is always welcome, earlier is better. Projects can take months to move through the Planning Board, during which time the board has typically requested — and received — many changes from the developer. By the end of the process, the members can find themselves in a bind if new public objections arise, or if citizens ask for additional changes to aspects of the project the board has already addressed.
“To a developer, it might cost a tremendous amount of time, money, and resources to make those changes,” after the company has typically invested a great deal already. The end is “a really difficult time to go backwards,” Soley says. “There’s a point at which it’s unfair.”
Which leaves one last option, where the Midtown project has ended up: “At the eleventh hour the only way to stop [a project] is litigation,” he says.
Mayor Michael Brennan agrees with Soley about getting citizens involved up front, and notes his surprise at the anti-Midtown outcry after more than a decade of discussions about Bayside. “If there were some type of opposition you would have expected it long before” the very end of the process, he says.
However, if the Planning Board’s attitude in this regard seems to favor developers over public concerns, that may be by design. Board members are appointed by the City Council, who are “very developer-friendly,” says Frank Turek, a leader of Friends of Congress Square Park, which leads him to ask (rhetorically) of the Planning Board “a basic philosophical question: What do you do that’s best for the people?”
Soley counters that the Planning Board works hard to fix, not kill, flawed projects, but ultimately when faced with imperfection, must “make our best judgement for what makes sense for the city of Portland.”
Diagnosis #2: InsecurityBut what city leaders think is best can differ significantly from what residents believe. Charles Remmel, one of the plaintiffs in the Williston-West case, and the first president of the Western Prom Neighborhood Association when it was founded in the 1970s, says city leaders should “have a little more faith in how the city will develop,” rather than thinking “if they don’t do [a proposed project] right now, it’s the end and we’ll never get another chance.”
“Portland has enough vibrancy” to attract good development, Remmel says, citing the city’s thriving food and entertainment scene, which he says has flourished “in spite of” city officials’ efforts.
When faced with these developers’ ideas, “Portland’s insecurities come into play,” Remmel says. City leaders often are “so insecure” that they approve the first thing that comes along. “They don’t have enough faith in themselves.”
Regarding Williston-West specifically, he says city officials were so worried about the future of the building if it lay dormant for too long that they eagerly embraced “the first guy who comes in,” even though that meant offices and a performance space in the middle of residences, and despite a lack of parking. (He says any parallels between fears for Williston-West and the St. Lawrence Church on Munjoy Hill, which did lay vacant and ultimately deteriorated until it needed to be demolished, are weak at best, because of different neighborhood environments.)
With Congress Square, he says, the city was afraid it would never have the money or the civic interest to improve it, so when a developer proposed the idea that involved selling off public land in the heart of the Arts District, officials leapt at the chance.
And with Midtown, the official thought line was, “We’re afraid if we don’t approve this, we’ll never get an opportunity like this ever again,” Remmel says. So the city raised the allowable building height in that area, and made other changes to accommodate the plan, rather than, for example, turning it down and waiting for one that made more sense for Portland.
Housing advocate and urban-issues blogger Christian MilNeil says the Congress Square situation and the Williston-West proposal are similar: “Those were really developer-driven. The developer came in with a proposal and that became the plan.”
(Former councilor John Anton, who was the only person to vote against both the Williston-West and Congress Square decisions, declined to comment for this story, saying he left public office “to get my life back” and didn’t want to get involved in current issues, nor revisit old ones.)
But MilNeil says the Midtown project was different, the result of a 15-year planning process. “You can’t really blame the developers for following the city’s plan,” he says. “The developers really were proposing something that was faithful to the city’s vision,” a development with an active street level, retail shops, and lots of housing.
Diagnosis #3: Resistance to changeBrennan says those are the city’s goals — his particular focus is “initiatives and proposals that are going to bring people to the downtown, galvanize the downtown, revitalize the downtown” — and says officials are balancing “a number of competing objectives,” including the city’s historic feel and overall aesthetics. 
Citizens who have risen up to oppose some of these developments have “different objectives,” he says.
When asked why some projects got a green light with barely a whisper, and others ignited firestorms, Brennan as much as throws up his hands.
“You get to a point where you’ve tried to compromise,” he says. “You just get to a point where you fundamentally have disagreements.”
Remmel agrees with that assessment: “Planning means to me you have a long-term idea” rather than being “focused on project approvals,” he says, arguing that city officials “are basically project-oriented. I don’t think they think in the same way the neighborhoods do.”
“A lot of these arguments are really about disruptive effects in a neighborhood,” Remmel notes. He admits, though, that what might count as disruption for him is fine for others, and vice-versa. He is confident, for example, that the Williston-West building could easily be converted into high-end residences by a developer who would protect the building’s historic facade. But Portland Landmarks, which protects the city’s architectural heritage, is against splitting up the beautiful interior of the sanctuary.
“It’s not a church anymore,” Remmel says. He’s right, but that statement alone doesn’t directly suggest any single course of action.
And that’s where MilNeil, a commissioner of the Portland Housing Authority, comes in. First, he observes, “cities change. It’s pretty much the definition of a city.” And second, he posits a clear dichotomy: “If the city doesn’t change architecturally, we’re going to change demographically.”
He’s speaking of the proposed Midtown towers, but the point is just as valid about putting a business in the residential West End: Either we have more and denser housing of all kinds, or the city prices out lower-income residents.
For his part, MilNeil puts social values over aesthetic ones. “I’d much rather preserve our city’s egalitarianism and embrace changes to our skyline,” he says.
Diagnosis #4: Class ConflictWhile on the one hand, MilNeil says, “it’s great that we’ve become such a successful city,” with merchants, restaurants, and a vibe that’s attractive to wealthy people; on the other hand he wonders, “Where are we going to put all the rich people who are going to move here?”
And with housing in short supply, and prices on the rise, where will the people the newcomers displace live?
“The rich people are just going to crowd out the working-class and middle-class people,” MilNeil predicts, unless the city undertakes major efforts to “make room for the people who want to live here and need to live here.”
Peter Monro, a landscape architect who is a leader of Keep Portland Livable, the group leading the opposition to Midtown (and suing to block it), says the city has it backwards. Rather than building downtown housing and an industrial park on the outskirts of the city, he says the city should have “good paying jobs at the heart of it,” which will in turn encourage spin-off developments to house those workers and cater to their shopping needs and desires.
His perspective is, he readily admits, that of an urban designer who lives in a historic-landmark home in a historic neighborhood district in the West End. He has a specific vision for how development should occur in Portland, and says the city does too, in its zoning and planning ordinances.
MilNeil, though, says Monro is looking at the wrong problem. Observing Monro’s West End residence and the fact that other plaintiffs in the anti-Midtown suit live in upscale housing too, he is blunt: “They’re homeowners so they’re not really aware of Portland’s housing shortage . . . and they don’t see it in their neighborhoods.”
As a result, he says, their opposition rises from a lack of an appropriate sense of urgency about an issue the city has been working on for more than a decade. “In their privilege they think they have the right to overturn 15 years of neighborhood-planning efforts,” he says.
Now, he says, because of Monro and his allies — and their lawyers — “this whole Bayside Vision is on hold.”
Diagnosis #5: Too many lawyersPart of the conflict does boil down to lawyers, of course. “If you can hire enough lawyers and kill any project you want,” which makes it harder for all developers, MilNeil says — including the Portland Housing Authority and Avesta, a non-profit developing affordable housing.
In fact, MilNeil questions Monro’s claims of pure motives. “I don’t think they’re out to win the lawsuit, actually,” MilNeil says, citing a Press Herald opinion column from November 2013, in which Monro was quoted saying it didn’t matter if he won the case in the end.
“We think the delay may be a deal breaker (for the developer),” the paper quoted Monro saying. “The power to delay is the power to destroy.”
Monro vigorously denies the charge, saying “we’re in it to change that project,” and rattling off several very specific changes he would like to see in the Midtown project (a lower parking garage allowing a wider, lower residential tower, for example). “This is not about delay.”
Ensuring the city followed the proper legal process is indeed important; Monro observes that the recent court rulings suggest that’s not a strength at City Hall. Noting that the courts must weigh heavily the fact that the city has the right to govern itself, Monro sees Portland’s recent losses as evidence something is very wrong: “Even with a bias in their favor they can’t win.”
What some — including Monro and Brennan — see as part of the checks-and-balances system, others, such as MilNeil, see as elitist. “As a city we should not be resolving all these contentious debates by lawsuit,” he says. “It’s not democratic.”
The only people who get to sue if they see an outcome they don’t like are rich people who can afford to hire lawyers, he says. “A courtroom is not a public process. It’s rich people fighting against each other.”
In the balance hang more than a few important questions.
For MilNeil, the key is renters’ futures. If Midtown’s developers have to modify their project to make it smaller or shorter, those changes will cost money, MilNeil says, on top of the relatively fixed
remediation costs for cleaning up the former railyard. With fewer tenants available to cover those costs, rents go higher — which is the opposite of MilNeil’s goal.
For Brennan, the suits boil down to the city’s sovereignty. Particularly with regard to the Congress Square petition and upcoming vote, he asks, “Is everything that the City Council does subject to a petition drive or a referendum?”
For Turek, it’s about taking on problems head-on. “All over the country cities are realizing that if we invest directly in public parks, we’ll get a lot more economic benefit” than selling the space and hoping development spreads, he says.
And for Monro, the effort is about holding back City Hall’s eagerness to grow. “They want population and tax base,” he says. “They’re looking for as many Empire State Buildings as they can get.”
Diagnosis #6: Being overwhelmedIt is possible that at least some of the popular resistance is because many areas of Portland are changing rapidly at the same time.
Brennan calls this period in Portland’s history one of “unprecedented development and development opportunities in the city,” saying there is “a lot of pent-up demand due to the recession” that started in 2008 and kept bankers and builders laying low, waiting for better times. Now, he observes, projects are being proposed throughout the city, including on High Street and India Street, as well as the working waterfront.
“There seems to be development every place we turn,” he says.
Listing off nearly a dozen active projects, Soley echoes that sentiment: “If you look at almost every corner of the city, there is substantial development going on.” With a tone of wonder audible in his voice, he says, “this is one of the most spectacular periods of development in the history of Portland.”
And that era is only continuing. The redevelopment of Franklin Street could open many acres of developable land in the heart of the city, which could be worth as much as $1 million per acre, a real-estate analyst told the Portland Press Herald.
As we plot that area’s future, we hope these lessons help Portlanders — both in and out of City Hall — reflect on one question, as Brennan posed it: “Is this development reflective of where we want to go as a city?”

*Williston-West Church*
Summer 2011
 Williston-West Church merges with Immanuel Baptist Church and moves worship to High Street. The beautiful, historic Williston-West Church is sold to Frank Monsour, an Australian businessman who proposes converting the parish house into residential space and office space for up to 14 of his employees; a future concept is to convert the sanctuary into either a community hall or a performing-arts venue.
May 2012 The Planning Board hears nine hours of public testimony, and entered into the record 97 letters and a 140-signature petition opposing the idea, according to the Forecaster’s report of that meeting. Objections relate to the city’s comprehensive plan, which protects the residential character of the West End neighborhood (and other parts of the city). Putting a business in the middle of an upscale residential area seems to run counter to the overall plan.
June 2012 Fifty people, about half in favor and half opposed, speak to the City Council during a two-and-a-half-hour public hearing, the Portland Press Herald reports. The council votes 6-3 to approve the plan, which involves a zoning change to allow the business (opposing were John Anton, John Coyne, and Cheryl Leeman).
July 2012 Twelve neighbors sue Monsour and the city, asking a Superior Court judge if the city went too far in changing the property’s zoning.
December 2013 The ruling is that the rezoning did violate the comprehensive plan, and that the building did not need a specially brokered deal to protect it, given the city’s strong historic-preservation ordinance. The city is planning to appeal that ruling to the Maine Supreme Court.
*Federated’s Midtown project*
 The city issues the Bayside Vision, calling for more housing and larger, taller buildings in the area, including the former railyard in the center of the neighborhood. The plan also recognizes a related need for a city-funded parking garage.
July 2011 The city agrees to sell 3.25 acres, the former railyard, to the Federated Companies for $2.3 million, with an agreement that any development would include a parking garage paid for in part with $9 million in federal money passed through the city.
Fall 2012 Federated unveils a $150-million plan to build 675 apartments in four 15-story towers, plus two parking garages with more than 1000 spaces, and more than 90,000 square feet of retail space.
Fall 2013 After nearly a year of hearings before the Planning Board and City Council, including ordinance changes allowing buildings to be as tall as 165 feet throughout the parcel, public opposition arose (see “Curb Appeal,” by Deirdre Fulton, November 22, 2013).
January 2014  The Planning Board approves the project. Two members of the board, Jack Soley and Bill Hall, say they don’t like aspects of it, but vote in favor because it meets the city’s ordinance requirements.
February 2014 Keep Portland Livable sues the city, saying the process did not properly respect the city’s own planning documents.
*Congress Square Plaza*
 City Council creates the Congress Square Redesign Study Group. After about three years of meetings, the 15-member body was no closer to an idea than they had been at the start.
November 2011 RockBridge Capital, the new owner of the Eastland Park Hotel (now renovated and reopened as the Westin Portland Harborview) proposes buying the plaza to erect an event center (see, among other coverage, “Congress Square’s Controversial Facelift,” by Deirdre Fulton, May 24, 2013).
May 2013 The city Parks Commission says the council should consider not just the status quo and the frequently revised RockBridge proposal but other ideas “such as a re-designed park in the same space, a fully designed smaller plaza, and other building or architecture options.” (See “Getting (Congress) Square to Work,” by Jeff Inglis, August 16, 2013, and “Reimagining Portland,” by Calvin Dunwoody, August 24, 2012.)
September 6, 2013 Friends of Congress Square, which had objected to the proposed sale for months, asks the city to allow the circulation of a petition for a citizen initiative to amend the city’s land bank, making protected land harder to sell, and adding 35 parcels to the Land Bank list, including Congress Square.
September 13, 2013 The city refused to issue petitions, arguing that the ordinance it proposed conflicted with city ordinance and state law barring initiatives and referenda on administrative and financial issues.
September 16, 2013 The City Council votes 6-3 (John Anton, Kevin Donoghue, and David Marshall opposed) to sell 9500 square feet, about two-thirds of Congress Square Plaza, to RockBridge Capital for $524,000.
September 25, 2013 Friends of Congress Square Park sues the city to force it to issue the petitions.
November 2013 A judge orders the city to issue petitions, which were finally released for circulation the day before Election Day. While the city planned to appeal, the Friends collected signatures at the polls, ultimately turning in 4250, far more than the required 1500.
March 2014 The City Council approved the petition’s question for the June ballot, but also moved to enact a slightly different ordinance that would add almost exactly the same properties to the protected Land Bank (with the notable exception of Congress Square), but with more modest protections against their potential sale.
April 2014 The Maine Supreme Court will hear the city’s petition-issuing appeal in early April, and is expected to rule shortly thereafter, in time to allow or block the June election.