Policy Wonk: Save the Soul of Portland initiative makes no sense

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Let me say at the outset that I am not opposed to the use of citizen initiative to address critical land-use issues. Twenty-five years ago a citizens initiative protected Portland’s working waterfront. The move toward wall-to-wall condos was halted.

An enlarged Maine State Pier, a new International Marine Terminal, Eimskip’s growing container shipping activities, new freezer and rail facilities, have all been made possible. This initiative maintained or created hundreds of marine-related jobs and an enlarged tax base.

More recently the successful parks initiative identified and protected dozens of scarce parks and open spaces in the city.

That said, the Save the Soul of Portland initiative – Question 2 on the city’s Nov. 3 ballot – does four things that are ill-considered, not needed, and ignores the realities of large-scale projects. If passed this initiative may well prevent the Portland Co.’s redevelopment of a prime waterfront site that has been underutilized for years. The loss of jobs and critically needed tax base would be considerable.

First, the initiative would create a city-wide Scenic Viewpoint Protection Overlay Zone subjecting properties in the zone to more stringent development regulations than presently exist elsewhere in the city.

Second, only one area is designated for inclusion in this newly fashioned overlay zone, although Soul asserts there are “… many treasured vistas of scenic beauty …” in the city. These vistas are presumably inadequately protected by the Planning Board and City Council, thus requiring this initiative. Not surprisingly, the only area bound by the initiative is the Portland Co. property.

Third, adding to (and duplicating the work of) regulatory bodies we already have – Planning Board, Historic Preservation Board, Land Bank Commission, Parks Commission – the initiative creates (for three years) a new 13-member Scenic Viewpoint Task Force. This body will identify the undefined number of other views and viewing areas to be included in the overlay zone.

But inclusion, or not, of these additional areas in the overlay zone is not put to a vote of the citizenry. It is left entirely to the Planning Board and City Council – the very bodies the Soul initiative implies have failed to adequately protect views in the past. This makes no sense.

The initiative creates the distinct possibility that only one area in the city (the Portland Co. property) will be subject to stringent and costly overlay zone regulations.

More importantly, the unspoken assumption of the initiative – that Planning Board and council actions or inactions have over time destroyed scenic views and viewing areas – is simply not true. Exactly the opposite is true.

The city has for years been concerned with protecting views, view corridors, and limiting the height of structures in an orderly setback from lower-lying areas to more upland areas. The height studies of the early 2000s (and before) attest to this concern.

So does the embodiment of these studies in Portland’s Comprehensive Plan, the Eastern Waterfront Master Plan, height ordinances, historic preservation ordinances, and design and site review requirements.

These regulatory tools protect not just bare-bones public health and safety, but views, viewing areas, historic structures, the amenity characteristics of any property being developed.

Beyond words on paper, more than 20 years of actual site approval decision making by the Planning Board and City Council demonstrate these tools are working. Look at the peninsula, where most of the city’s tall buildings are along the spine.

In the Western Prom neighborhood, along Commercial Street, and more recently in the Munjoy Hill area, the approval process has consistently protected views and view corridors, or has fashioned reasonable compromises with respect to these issues. There is no reason to believe this will not continue to happen as the Portland Co.’s development unfolds.

The fourth flaw in the Soul initiative is the requirement that detailed development plans be provided before needed zoning changes are enacted. This requirement ignores the difference between concept plans sufficient to show the need for a rezoning, and far more costly detailed plans, which are needed when development approvals for actual construction are sought.

In short, the imposition of prohibitively high front-end costs on large-scale redevelopments which will unfold in phases over five to 10 years (such as the Portland Co.’s) seems little more than a veiled strategy to kill such projects.

Finally, the Soul initiative fails to acknowledge that many of the views it would protect are readily available at nearby alternative vantage points, e.g., from the waters edge along the Eastern Prom trail, from an expanded Fort Allen Park (barely 200 yards from the Portland Co. property), and along nearly a mile of the Eastern Prom itself.

Bottom line: the redevelopment of the Portland Co. property is sorely needed because it will create jobs and tax base. Views and view corridors from this site can and will be protected. The Soul initiative goes too far; it is not needed. It should be rejected by voters.

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 orlando.delogu@maine.edu.

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