In the early 1990s the city of Portland, in its zeal to protect the landmark Tracy-Causer building, sued to enforce an order requiring Tracy-Causer Associates to spend $100,000 to stabilize the building.
The court noted “Those expenditures, while assisting in the preservation of the structure itself, would not come close to returning the building to habitability. TCA has estimated, and the court finds the estimate to be reasonable, that it would require an additional $1.5 million to rehabilitate the building sufficient for resumed occupancy.”
The court further noted “The city has not offered to pay for the repairs, nor has the city proposed to take the building from the owners ….”
TCA argued that given these realities, the city order constituted a taking of private property because TCA was deprived of a substantial portion of the economic value of the property.
The court agreed with TCA’s argument. It denied the city’s order, but required the building to be secured and surrounding vegetation removed. The city did not appeal the decision. Sensing a losing case, it did not want to jeopardize a budding historic preservation movement.
Happily, preservation-oriented private developer Stephen Goodrich acquired the building in 1995 and began to restore the property. The growth of the Old Port and the upsurge in property values in the neighborhood allowed him to sell the property for a profit in 2002.
In sum, regulatory over-reaching did not save the Tracy-Causer building. It was saved and is in use today because a visionary private developer saw Portland’s growth potential, put his money on the line, and created an economically viable project. In doing so he also created jobs and tax base for the city.
Fast forward to 2013. The 10-acre Portland Co. property, a prime, historic, waterfront site (underutilized and deteriorating for more than 30 years) was acquired by a local preservation-oriented development group, CPB2.
Jim Brady, a principal in CPB2, was then involved in the private renovation of the historic Press Herald building in downtown Portland. The elegant, widely acclaimed Press Hotel opened there in May, 2015. Historic preservation goals were met, and again, jobs and tax base were created.
From 2013 to the present, CPB2 has been fully involved in detailed studies of the Portland Co. property and simultaneously, the city’s planning and regulatory processes. The Planning Board and City Council approved a rezoning of the property to allow a mix of housing, office, and retail uses.
The Eastern Prom Trail, wide view corridors, and public access to the property are preserved. Park space and a wide public esplanade were designated.
CPB2, in hearings before the Historic Preservation Board, embraced the idea of designating a historic district within the property and committed to preserving and rehabilitating seven of eight historic structures.
The HPB in its recommendation to the Planning Board argued that the historic district should embrace all eight historic structures. CPB2 noted that the eighth structure has more limited historic value, would impose significant rehabilitation costs jeopardizing the economic viability of the project, and because of its location, would block plans for the esplanade and public views of two other historic buildings.
The Planning Board, after a public hearing that heard all points of view, saw CPB2’s proposal as a principled compromise. It unanimously recommended that the historic district be created – and that the seven “historically significant contributing structures” identified by CPB2 be within the district.
This recommendation is now before the City Council for approval. A public hearing to decide the matter is scheduled for Feb. 1.
One would think the historic preservation credentials of the developer, his embrace of a historic district throughout all of CPB2’s project planning, and the Planning Board recommendation would carry the day.
But no, the same historic preservation zeal that dogged Tracy-Causer lives on in the present Historic Preservation Board. Unable to accept the principled compromise fashioned by the Planning Board – which has regulatory oversight – the HPB is prepared to again argue that all eight structures should be within the district. Greater Portland Landmarks will almost certainly support this effort.
These entities (one public, one private) have neither the power nor the resources to pay for the rehabilitation costs they would impose on CPB2 or to buy the eighth structure. They have no sense that the regulatory overreach they want the council to impose jeopardizes the economic viability of the entire CPB2 project. They act as if historic preservation is the city’s only goal.
But it’s not. It is one goal; one CPB2 will readily meet. But housing, jobs, an increased tax base and revitalizing a dilapidated waterfront area are also important goals of the city.
Hopefully the council will send this message loud and clear by adopting the Planning Board recommendation.
Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at firstname.lastname@example.org.