Why we have gone to court over the Midtown project

Portland city hall

Our appeal alleges improper actions and inaction by both the City Council and the city Planning Board in approving the massive, city-sponsored Midtown project.

Keep Portland Livable has gone to Superior Court to overturn the Portland Planning board’s approval of the massive Midtown project, whose four towers and two outsized parking garages would create a wall of buildings between Trader Joes and the parking lot of Whole Foods in the Bayside neighborhood opposite I-295 downtown.

The Portland Planning Board decided to approve the towers and garages in January (2014) despite 12 months of testimony from neighborhood residents, landowners and businesses and others from across the city detailing the ways the project failed to meet the neighborhood’s wishes or the city’s standards.

A month later, members of Keep Portland Livable appealed the Board’s improper approval, hoping to oblige the city, which owns the land, and the developer, The Federated Companies of Miami, Florida, to revise the project to conform to the city’s land use rules. The eight litigants include major landowners and residential owners in the Bayside neighborhood.

Our appeal alleges seven major failings in the city’s approval process, failings which create precisely the kind of development that is known to suppress life on city streets, block views designated to be kept open to and from the city’s actual midtown, and keep the public in doubt about the true impacts of the development until after it is built and the profits have left town.

Any of these counts, if agreed to by the court, could lead to significant required alterations to the Midtown project.

The first count alleges that the Planning Board violated the city’s Zoning Ordinance and design standards, in part by failing to assure that the towers and six and seven-story garages would “preserve the neighborhood building scale,” or that the garages would be hidden by having distinctly different tops.

In granting almost two dozen waivers to the project, the complaint alleges that the Board failed to meet the waiver standards of extraordinary circumstances, undue hardship, or public interest and that the Board exceeded its authority by granting “variances” to the zoning ordinance.

The Planning Board also accepted a plan that was incomplete, one that lacked the required 3-D model showing the proposed buildings next to existing buildings, as well as the required shadow and wind studies. These were all topics, which if addressed as required, would have revealed problems these buildings would create that would limit people’s willingness to walk or linger nearby.

The second count in our appeal charges that the Planning Board approval failed to comply with the city’s Comprehensive Plan in significant ways, for example:

  • The project fails to extend streets to maintain small city blocks, fails to maintain a scale similar to other peninsula neighborhoods, and lacks green open spaces or “a small town feel.”
  • The Board also failed to require mid-block permeability, which would have allowed views, and access, through the project. Instead 83- and 92-foot tall buildings are placed in the Cedar and Myrtle street corridors that “should be minimally intruded upon.”
  • Meanwhile, where the Bayside Vision foresaw a total of 800 or 900 new units in a range of costs and types, Midtown as approved could create up to 850 identical units at a single price point.

The third count notes that the Planning Board did not have a complete stormwater drainage plan when it approved the project, so much so that serious negotiations about drainage were held with abuttors after the vote, denying the public its right to review or comment.

Counts four and five charge that the City has violated state statutes for failing to develop a plan for dealing with flooding due to sea level rise and storm surges in lower Bayside, where this project is located. The state also requires that development be limited to areas outside natural hazard areas, such as these flood-prone flats.

Count six focuses instead on the City Council and its action last April in raising building heights in an area of Bayside limited to lower heights, without first seeking changes to the Bayside Vision that led to the city’s systematic scheme of heights in that area.

The final count charges that the Planning Board failed to keep records of their hearings in violation of the Maine Freedom of Access Act. The city’s Planning Board has no secretary, keeps no visual or written record of its proceedings.

The audio recordings that normally form the basis for Board records were missing or inadvertently erased for almost half the 14 workshops and hearings on the Midtown project. Even in the existing recordings, board members do not identify themselves, and the votes and names of those voting are not recorded.

Besides making review of Planning Board actions difficult, this lack of records adds to costs of appeals and makes them more difficult to prosecute.

 

 

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