Justice Warren sustains appeal of Midtown approval

Portland Maine flooding

Our appeal alleges the city has failed to make a required plan to deal with flooding for the project area in Bayside, such as here along Somerset Street in September 2012.

Superior Court Justice Thomas Warren has sustained our appeal of the Midtown case against the City and The Federated Companies while dismissing some of the counts, but incorporating those arguments into the remaining counts. He also laid out a schedule for upcoming filings in the case, which extend into Fall 2014.

Justice Warren refused to dismiss the third of our seven counts that alleges the Planning Board approved an incomplete stormwater drainage plan for the Midtown project, after which Planning staff met with abuttors to fashion a complete plan, which was announced later as the approved plan without allowing public comment.

In doing so, he noted, “The court emphasizes that if the project was approved without a required stormwater drainage plan, that would be a basis to invalidate the approval.” [Click here to see a full description of our court case.]

Justice Warren agreed with the defendants that our second count, alleging that the project’s approval violated the city’s requirement to find that the project was consistent with the Comprehensive Plan, could be combined with the first count, where a variety of other Comprehensive Plan, zoning ordinance, and design standard violations are described.

He also agreed with the defendants that although the Planning Board kept incomplete records of its hearings—erasing audio tapes for five of the 14 hearings, for example—the state’s Freedom of Access Law provides no compensation for such shortcomings. Arguments concerning the poorly kept can however be raised in the remaining counts.

However, the court did assign the time-consuming task of preparing the records of the City Council’s actions raising heights on the project site to the City and The Federated Companies.

Justice Warren reserved judgment on whether we could pursue our charge that the Midtown approval violated the state requirement that land use approvals prevent “inappropriate development in natural hazard areas,” like the flood-prone Bayside flats where this project would be located.


The judge declared that all briefs and responses for the two declaratory judgments we  seek against the City Council be filed with him by Aug. 7. Besides raising the building heights improperly, we allege that the City Council has failed to limit residential development as the state requires in flood-prone areas like the Bayside flats.

For the remaining three counts against the Planning Board’s administrative actions, Judge Warren set a deadline of Sept. 16 for all briefs and responses.


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