Portland asks federal court to allow code enforcement at Islamic Center
PORTLAND — The city claims the owner of a Washington Avenue building at the center of a religious rights dispute is not keeping her end of a temporary court agreement.
Now, the city is asking the U.S. District Court to allow it to proceed with enforcement to bring unapproved property alterations into compliance with code.
Sadri Shir and the Portland Masjid and Islamic Center, with the help of the Maine Civil Liberties Union, sued the city in August. They claimed the city was violating the religious rights of the center by not allowing it to use 978 Washington Ave. for gathering and prayer.
Under a consent agreement, the city said the center could continue to use the building for prayer while the lawsuit was pending.
Additionally, the center owners agreed to submit a site plan for the property. Shir paved a parking lot on the property a couple of years ago, which the city says has resulted in flooding of a neighboring yard. The work was done without permits, which require filing and approval of a site plan that addresses runoff and drainage.
City attorney Gary Wood the site plan has not been submitted, despite the city's attempts to work out a plan with the property owner and the Islamic center.
"We've communicated with them three or four times over the last six months about this," Wood said.
The city on Nov. 19 filed a motion in federal court seeking to amend the consent agreement so it could pursue enforcement action on the alleged site plan violation.
Wood said attorneys representing the property owner have said the owner doesn't have the money to pay for engineering and design plans. An Oct. 9 letter from attorney David Lourie to city Planning and Urban Development Director Penny Littell said that the Afghan community "is not a wealthy group." He said the group shouldn't have to file a site plan until the lawsuit is resolved, despite the clause in the consent agreement.
Lourie asked the city to accept a waiver of all requirements and a plot plan instead of a site plan. He also proposed that the property owner simply be allowed to remove the asphalt.
Wood said the property owner needs to bring the property into compliance with city site plan requirements. He also said that although the Portland Masjid and Islamic Center is involved in the negotiations, the property is owned by Shir and she is ultimately responsible for complying or facing any enforcement action from the city, which could include fines.
"It's her assets at risk," he said.
Zach Heiden, the attorney for the MCLU, said this week that an agreement with the city on the parking lot issue could be near.
"We're going to have to do one of a couple of different options and they are all expensive," Heiden said. He said he did not know why the city filed the Nov. 19 request to amend the consent order.
Meanwhile, the city has had several meetings and has developed an amendment to its assembly ordinance that Wood said should resolve the Islamic Center's issues with not having enough parking and a too small lot.
Wood said he hoped to have the proposed amendment before the City Council for a vote on Jan. 4, 2010.
"I think we've come a long way to solving their problems," said Wood. "They still have to meet site requirements, though. They need to get on that drainage issue."
Heiden said he looks forward to seeing the city's proposed amendment.
"It's a big case, but this may settle some of it," he said.
The lawsuit filed by the MCLU contends the city is violating the Religious and Land Use Institutional Persons Act of 2000, which gives houses of worship federal protection.
The lawsuit came in response to an April ruling by the city zoning administrator that Shir needed to go before the Zoning Board of Appeals for parking and lot size exceptions, and before the Planning Board with a conditional use request.
The ZBA denied Shir's request in June.
Shir and the center have until Dec. 9 to respond to the city's motion to amend the consent decree.