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Lawsuits challenge Portland decisions on plaza, loitering

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Lawsuits challenge Portland decisions on plaza, loitering

PORTLAND — The city was sued twice in as many days last week.

On Sept. 24, three residents filed a lawsuit to overturn a ban on loitering in street medians.

The ban, which took effect in August, was unanimously approved by the City Council, which viewed it as a public safety measure. But critics claim the law is a thinly disguised attempt to clamp down on panhandling.

On Sept. 25, the Friends of Congress Square Park sued to be allowed to create a citizens' initiative strengthening protection of public open spaces, including the plaza at Congress and High streets.

The group sued after the city rejected the Friends' petition and the City Council later approved selling a portion of the plaza to the developer of the former Eastland Park Hotel.

The loitering suit is being brought in federal court by the American Civil Liberties Union of Maine and Boston law firm Goodwin Procter, on behalf of Michael W. Cutting, Wells Staley-Mays and Alison E. Prior. The Friends are represented in state court by local land conservation lawyers Robert Levin and Sarah McDaniel.

In its complaint, ACLU Maine said the loitering ordinance was "overbroad" and violates the residents' constitutional rights to free speech.

The complaint claims the ban is so broad that it extends to the median of Franklin Street, between Marginal Way and Middle Street, which is 50 feet wide and planted with trees. During most election seasons, the median becomes home to dozens of political signs – a practice that is prohibited by the ban, according to ACLU Maine.

The complaint described Cutting and Staley-Mays as activists who have stood in medians holding political signs. Prior is homeless, and has stood in medians asking for food and money, according to the complaint.

"While this ordinance was framed as an effort to protect public safety, in reality it prohibits a significant amount of peaceful, non-threatening, constitutionally protected speech," Zachary Heiden, ACLU Maine legal director, said in a press release.

"The city of Portland should not be in the business of telling people where they can and cannot exercise their constitutional rights, and it should certainly not be banning speech in an area that has traditionally been used as a forum for public dialogue."

The Friends' complaint says the group correctly followed the process for beginning a citizens' initiative, which, if successful, would create a referendum on the tighter protections.

They include placing Congress Square Plaza and 34 other publicly owned properties in the city's Land Bank, which protects designated open spaces that have environmental or recreational values. The initiative would also expand the types of property protected by the Land Bank to include "urban open public spaces."

But the City Clerk rejected the Friends' attempt, saying that such a citizens' initiative would conflict with state and city law, which gives the council exclusive rights to decide on fiscal and administrative functions.

The complaint calls the rejection "arbitrary, capricious, legally erroneous and unsupported by competent evidence in the record." It asks the court to order the clerk to provide the petition forms necessary to begin the initiative. The Friends would have to collect 1,500 signatures from registered votes to put the changes to a referendum.

"Our parks and open space are vitally important to our identity and quality of life," the group's president, Frank Turek, said in a press release. "It's disappointing  that the city is putting up roadblocks to a citizens' initiative that will benefit all Portlanders."

William Hall can be reached at 781-3661 ext. 106 or whall@theforecaster.net. Follow him on Twitter: @hallwilliam4.