June trial set for lawsuit over South Portland 'Clear Skies' law

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SOUTH PORTLAND — The lawsuit challenging the city’s Clear Skies Ordinance is scheduled to go to trial June 18 in U.S. District Court.

The City Council transferred more than half a million dollars to the ordinance defense fund Tuesday in anticipation of the trial, and approved zoning changes to help advance an affordable housing project proposed for Main Street. 

The unanimous vote appropriated more than $546,000 from an unassigned fund balance to the Clear Skies defense fund. The case is slated for a four-day bench trial before Judge John A. Woodcock Jr. June 18-22.

The city has already spend $1.4 million on the litigation filed by Portland Pipe Line Corp., and has received $168,000 in donations to help defend itself. The city’s attorneys are preparing witnesses and exhibits for trial as well as preparing and filing pre-trial motions, according to City Manager Scott Morelli. 

In December, Woodcock largely rejected arguments from Portland Pipe Line challenging the legality of South Portland’s municipal ban on crude oil exports.

The suit has been pending for more than three years.

Portland Pipe Line sued in February 2015 to overturn the city ordinance adopted in 2014. It established amendments to the city’s zoning ordinance related to the bulk loading of crude oil onto ships. 

The company argued the ban was unconstitutional because it interferes with interstate trade, discriminates against Canadian interests, devalues the pipeline and infringes on areas of regulation best left to the federal government.

The city sought summary judgment in 2017, contending there were no disputed facts that necessitated a trial, and the court could examine the facts and make a decision based on applicable law.

Woodcock in December granted summary judgment in the city’s favor on most of the counts in the complaint, but took no stance on the critical question of the ordinance’s impact on interstate and foreign commerce.

Instead, he wrote that a future “fact finder” – potentially the court – would have to resolve those federal commerce issues given that “the parties disagree both mildly and vigorously about facts critical to the resolution of the Commerce Clause issue.”

“The city claims the ultimate effect of the ordinance is not to block pipeline reversal because crude can be exported by other means, including by rail,” Woodcock said. “(The company) maintains the practical and intended effect is to block its plan for pipeline reversal and therefore block the flow of Canadian oil to other markets. Both parties present evidence … to support their factual claims. There are genuine disputes of material fact as to primary effect and primary purpose of the ordinance. The Council’s primary purpose and intent in enacting the ordinance, as well as its primary practical effect, will have to be resolved by a fact finder.”

The money approved May 1 is the fourth appropriation to the Clear Skies Ordinance Legal Defense Fund and will include $500,000 from unassigned fund balance and $46,505 from additional donations received to date. 

Zoning

In other business, the council by a margin of 5-2 gave initial passage to a zoning change in Thornton Heights, which if adopted at second reading in two weeks, will accommodate a proposed $9 million affordable housing project at 611 Maine St., the site of the former St. John the Evangelist Church. 

The property, including the parish house and a school building, has been vacant for four years.

Planning and Development Director Tex Haeuser said in March the proposed South Portland Housing Authority project may be the catalyst to spur growth in the neighborhood.

The change was recommended by the Planning Board in March based on its compliance with the city’s Comprehensive Plan, and sent back to the council for a first and second reading. If approved, the project will return to the Planning Board for site plan review.

To allow the 42-unit development with three additional house lots, the agency wants the city to rezone the rear acre of the property, which is in a Residential A zone, to conform with the rest of the parcel, which is in the Main Street Community Commercial zone. The property is bounded by Main Street, Aspen Avenue and Thirlmere Avenue.

The Housing Authority is under contract to purchase the 2-acre property from Cafua Management for $1.2 million. Cafua is the Methuen, Massachusetts-based company that bought the property in 2013 with the aim of building a drive-through Dunkin’ Donuts. That proposal was abandoned after it provoked vigorous opposition from neighborhood residents opposed to the scale of the project.

The Housing Authority will apply for a federal low-income housing tax credit to help fund the project. Brooks More, SPHA director of development, said four applications are usually selected each year, based on a point system for specific criteria, including the cost to build each unit.

He said the building will not be financially viable unless it includes at least 40 units.

Councilor Claude Morgan and Mayor Linda Cohen were the dissenting votes. Morgan said the scale of the project is too large for the neighborhood.  

In three meetings with the Housing Authority, some Thornton Heights residents have asserted the project will disrupt the character of the neighborhood and cause problems with traffic and density. Others have said they support public housing, want to attract more families to the area, and are open to ideas presented by the agency.

To qualify for affordable housing, a single person would be allowed to make no more than $28,000 per year, and a family of four would have an annual income limit of $41,000. Rents would range from $770 per month for a one-bedroom apartment to $1,081 for a three-bedroom unit, More said.

If the SPHA plan moves forward, construction could begin as early as fall 2019, with completion expected a year later.

Juliette Laaka can be reached at 781.3661 ext. 106., or at jlaaka@theforecaster.net or on Twitter @JulietteLaaka. 

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