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.

  • jbs01

    This view of “regional significance” can only be enjoyed by the public while driving (eyes on the road!) or while walking on a steeply sloping sidewalk lacking the public amenities of the nearby eastern prom or east end trail. In fact, the view in question is considerably compromised by fencing, trees and existing structures for a significant portion of its run unless one is in the upper levels of nearby houses.

    If this view is of “regional significance”, surely the Souls would have suggested some public amenities that would make the area both more accessible and attractive to the public, so that folks might gather and linger to enjoy this view. Perhaps additional parking, benches, locations for food trucks and vendors and other amenities would enable the public to better enjoy this view along this stretch of Fore Street? If it is of regional significance, surely we should enhance it so that the public can enjoy the view.

    I believe Mr. Delogu has this right. It is fanciful to expect any developer to have detailed plans at the outset involving a derelict and historic industrial site that will require a multi-year build out and considerable navigation and fact finding around environmental, historic, structural, access, zoning and planning reviews.

    • munjoyfan

      Just yesterday, while I was looking at the brush clearing the city has begun along the fence (which is on city property), two cars stopped to look at the view, one backing up Fore St after driving by it.
      It would be great if the city would pave the land it owns there, take ALL the invasive bittersweet and knotweed off its property, and install a couple of benches and Tower Optical telescopes (the kind you put a quarter in).
      I absolutely agree enhancement of the amenity by the city is in order–new fence and all. Mr Delogu is wrong that the same view is available from the Eastern Promenade. He is confusing the ship channel, which leads out to Portland Head, with the harbor.
      That perspective is unique, and when it is gone, it is gone forever. Like Union Station and the old Franklin Street.
      Any developer who can’t make money on that property without taking the view for condos shouldn’t be in the business.

      • jbs01

        I too just drove this route.
        Given the mile+ of open vistas available via eastern prom, I think a serious consideration of the cost/benefit of this particular view are in order.
        It is significantly obstructed by brush, a fence and folks who do park theior cars along the road.
        Why haven’t the biggest boosters of protecting this view for the public’s enjoyment ever proposed or funded such improvements in the past? In fact, several of the most ardent Yes on 2 folks have fought any project that would bring the public to this section of waterfront.
        I remain convinced this is about ptotecting the private views of the few at great expense to the City. The Portland Company redevelopment – with a historic designation almost in hand – is a tremendous win win for the City.

        • munjoyfan

          Actually, the previous owner of the Portland Company property did some brush clearing and cooperated with neighbors to fund brush clearing.
          Fewer than a tenth of one percent of the supporters of Yes on #2 live on the East side of Munjoy Hill. Do you think they are twisting the arms of the rest of us? Personally, I have no interest in their private views. The Portland Company will be developed, it will protect the public view, and it will be a win win for the city. Right now it looks like the current owners are practicing at 2015 form of urban renewal, taking down as many historic buildings as possible to clear the land for resale at maximum profit. This appears to be why they haven’t told us where the entrances and exits to the property for the hundreds of cars that will go in and out every day will be.

          • jbs01

            Fear of the unknown can be a powerful motivator. The developer has been vilified – ignoring his track record in Portland. And this huge historic waterfront site continues to languish and decay. From past public positions, it is that the authors of the referendum have zero tolerance for public access and amenities along the waterfront in their “backyard.”
            I do think this is about preserving the private views of a few. The public access to this view is already compromised and has never been improved by the Souls or anyone else. The prior owner opposes the Souls position. The public view shed was only invoked when the private views were put in jeopardy.
            By the way, the funding report of the Souls does not support your math regarding membership. If you are using signatures as the basis, I think you have cherry picked a statistic that obscures the fact that a few folks have pushed this and continue to fund it.
            This is not surprising. We are all (mostly) rational and folks are motivated by self interest. In the case, the author has it exactly backwards. The public benefit is achieved via investment and preservation of a derelict historic site that is at risk of becoming unrecoverable. Souls folks glibly assure us that the risk and return involved in such a complex, heavily regulated and multi-year undertaking will occur regardless. I think those assurances are based on wishful, convenient thinking.
            I think the truth is that this site is a very difficult site to work with. There are zoning, access, historic, environmental and architectural constraints that make this a difficult project. If we wait until the historic buildings are unrecoverable, then a future developer will no longer have that constraint and the public loses a piece of our heritage. At some point, if the Souls are successful in getting their referendum passed, the public will eventually realize it was a mistake. The referendum will be repealed and we will get a developer with less commitment to the uniqueness of Portland and without the constraint of a historic district or historic buildings to preserve.
            We will have lost our historic heritage and an opportunity to work with a proven developer who works intelligently with Portland and its scale. What we will get in return will be worse. And the only folks who will benefit will be the few folks who have preserved their private views for five or ten more years.
            In the meantime, history crumbles, we have fewer resources to fund our schools, parks and police and there is that mush less invested in Portland.

          • truther

            I found myself driving down Fore Street today so, as I did so, I made a point to check out the view.

            There was nothing worth these drastic measures to save. There’s certainly nothing that a taller building on the Portland Co. site would irreparably ruin. The best views, by a country mile, are along the Eastern Prom and at Fort Allen Park. There are already tall buildings, small buildings, fences, plants and terrain changes that obstruct the view of the working waterfront.

            The notion that there’s some kind of treasured vista of scenic beauty, or whatever half-assed euphemism they’re using, is flatly absurd. If this development gets hampered *for this reason*, it’ll be the biggest con job since [insert president] lied to the American people about [insert issue].

          • EABeem

            If there is a public view to protect, protect it. But if it’s just a few people who live behind the Portland Company in houses that block the view for people who live behind them, then I don’t see how this is much of a pressing public issue either. I walked the entire Eastern Prom the other day. It’s not like you can’t see the bay and the harbor.

          • Jayyork

            Of course the residents across the street from this “proposed” project don’t want to lose views but over 2000 other people signed the petition. In the 80’s I went up and down this stretch of Fore Street every day for eight years and there is no other place in Portland that has such an expansive view of the harbor and working waterfront of Portland and South Portland.

          • Chew H Bird

            My only issue with this concept is people walking or temporarily using the space are simply visitors to the specific area, (residents or not). People who have invested their resources in property are reminded every single day of their view (or not).

            While the reduplication of efforts makes no sense, and the “Souls” effort clearly goes too far, there should be (in my opinion), an ethical responsibility to protect the comparatively few home owners who are at risk of losing their views while encouraging economic development.

          • Jayyork

            I do agree that a compromise should have happen between developer and home owners but it didn’t happen. A number of my friends supporting the “No on 2” side agree that the developer could have averted this whole issue by being more open with his plans for that site. I don’t agree that the proposed ordinance goes to far but I do think it could have been written better.

          • Jayyork

            There is no other place in Portland that has such an expansive view of the harbor and working waterfront of Portland and South Portland.

          • Jayyork

            But Phin acknowledge the views from upper Fore Street because he let the previous owners of those buildings across from his property cut down trees and brush to maintain those views.

          • jbs01

            The prior owner allowed folks who lived across the street to improve their private views by cutting trees.

            Good for Phin! That was neighborly.

            But what did these newly christened champions of public views do to enhance public views? We have a steeply sloping sidewalk without any amenities and plenty of intrusions on the view from public spaces. To be clear: they did not have to do anything – and they didnt do anything.

          • Jayyork

            It is the City of Portland’s responsibility to improve and build/install public amenities not the owners of the homes across the street. And our city is very slow to acknowledge the treasures that make Portland such a great place to live. If this view can be saved, hopefully, the city will make the improvements necessary to encourage more of the public to enjoy it.

          • jbs01

            I think the SOP founders are quick to ask others to bear the costs of preserving their private views. And there is very little opportunity for the public to enjoy the view: steeply sloping sidewalk, with existing obstructions and no amenities. The view is located within 200 yards +/- of an existing spacious park with all sorts of amenities and sweeping views.
            If you are going to wrap yourself as preserver of public views, it would help to have a track record that doesn’t just seek to preserve your private views while imposing those costs on others.
            Rationally, this is about costs and benefits. I get why abutters would be concerned about their private views being degraded. And I understand why they would want to rally folks to their side. But in viewing the facts and the costs and benefits of what they seek to impose on all development in the City – and this opportunity – the costs vastly exceed the limited benefits.
            Its bad policy, poorly conceived and designed to benefit a few at the expense of the entre City.

          • Jayyork

            The view in question was listed by the Portland Press Herald (who supports and promotes No on 2) as one of the best location to watch the tall ships. Let’s be clear…the adjacent sidewalk and street are public space therefor the view from it is not private. Yes the homes across the street have a wonderful view as do many other homes farther up the streets but it is first and foremost public!

          • jbs01

            Sidewalk is public. Agreed and not in dispute.

            It is steeply sloping, with views constricted by fence, vegetation and buildings. It has no public amenities. It is within 200 yards of a spacious public park with amenities and sweeping view.

            If you think one place to view tall ships when they are here warrants risking $200M of economic development and historic preservation of derelict historic industrial site by all means vote yes.

            If the cost benefit tradeoff looks out of whack, vote no.

          • Jayyork

            I’d like to see the economic analysis that proclaims $200M for Portland because of the development of the Portland Company site stand up to a critical review of it’s data.

          • jbs01

            As far as my use of $200M, I think it fair to state the buildout of the site and preservation of the historic structures will represent a nine figure ($100M+) investment. I have no inside info – but the site will be expensive to develop and take years to do so, I believe. Any application of a multiplier effect on those expenditures plus the ongoing economic activity occurring at the site escalates the benefit quickly. Think of the annual activity generated via residents living at the site, hotel, retail, restaurants, marine uses.
            To be sure, the analysis has not been peer reviewed. But it is not based on falsehoods, either. Thus far very few of the assertions made by SOP have held up even to lay scrutiny much less critical review by experts.
            Good for you for raising the question of factual accuracy. Please be sure to turn that lens on statements of SOP as well.

          • Jayyork

            So the Eastern Prom and Fort Allen Park are not steeply sloped? And the view from Fort Allen Park of the harbor and working waterfronts are blocked by the high-rise.

          • jbs01

            Have you ever been to them? Are you trying to purposely be obtuse?
            These parks have parking areas, benches , a gazebo and they have hundreds of yards of level sidewalks along roadways and next to parking areas where one can stroll, sit or park and enjoy sweeping views.
            Yes, there are buildings that block views. Frankly, there have been buildings in Portland for hundreds of years that have blocked views. Some of the building that block the very same view you site are owned by SOP funders and founders.

          • Jayyork

            I’ve lived in Portland 40 years and have spent 8 of those years walking my dog daily around, up and down, and through the eastern end of the Portland peninsula. I know it very well. That is one of the reasons I support YES on 2.

          • jbs01

            Well, then you also know that Fort Allen and the Eastern Prom also have lots of level sidewalks and viewing places.

            We can respectfully disagree about #2. But lets not pretend that
            Fort Allen and Eastern Prom don’t have lots of level places to stop, sit and enjoy the views.

            Either way, we have a lovely city – one which this native has enjoyed for 40 of my 50 years.

          • Jayyork

            Never said those spots didn’t have amenities but just because the city has failed the public by not improving the sidewalks along Fore Street and providing benches does not negate the fact that the views from upper Fore are unique and worth saving.

          • jbs01

            I think the quality of the public space speaks to the potential public benefit from the ordinance and whether the cost benefit tilts to the Yes or NO side.

            We obviously disagree.

            But I think protecting a public view that is only available from a steeply sloping sidewalk, obstructed by a rusty fence, existing buildings and overgrown vegetation and that does not have any amenities (or room for amenities) speaks to the existing and potential value of the public view. It just does not make sense to squander a chance to thoughtfully resurrect a derelict historic industrial site and benefit from the economic boost.

          • Jayyork

            Wonder what you would have said when Fort Allen Park was first proposed? Or more recently, Harbor View Memorial Park? Both would have fit the description you present for the upper Fore Street sidewalk area.

          • jbs01

            Ridiculous comparison. Wasn’t Eastern Prom conceived at some level by Olmstead?
            You are seriously comparing the Eastern Prom and Fort Allen to an unimproved sidewalk?

          • Jayyork

            No, I’m suggesting your opinion is very myopic and limiting.

        • Jayyork

          Fought what project in the past? There haven’t been any proposed for that site. And as for public access I went through that property all the time for years while walking my dog along the Eastern Promenade Trail. I know of no one who was ever denied access to walking through the Portland Company site while Phineas owned it.

          • jbs01

            Me narrow guage railroad

  • Thomas Silverstein

    What he doesn’t understand is that the development will happen regardless of what happens with question 2. Question 2 will only allow for more oversight and responsible development. The tax base will increase and housing will be built even is question 2 succeeds.

  • Mainer

    I’ve been following this for some time now, reading the various articles as well as the comments. I’m very disappointed with the amount of misinformation the SOP supporters have been willing to spread to their own neighbors. For example, the comment below from Thomas – is this based on any facts whatsoever? Are they really willing to say just about anything to try and manipulate the people of our city? I’ve also read the 8 page referendum and agree with this articles author, “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.”

    • Jayyork

      Mainer, “Are they really willing to say just about anything to try and manipulate the people of our city?” “Is this based on any facts whatsoever?”

      • jbs01

        I think the Wal Mart, Gated Community, Disrupt Eastern Prom Trail canards are three of the most egregious distortions promoted by SOP.

        Then we have recent letter writers that suggest that the project will not provide housing to address the city’s affordable housing needs (false) and that the project is not adhering to the requirements of the historic district (false – the boundaries of the district have not been set and the developer has specifically stated he will adhere to historic preservation requirements.

        Those are the ones that roll of my head in about 30 seconds.

  • Jayyork

    When city staff reinterpret city council decisions we have a problem. In 2004 the city council voted to adopt the Eastern Waterfront Master Plan. Included in that plan was the Eastern Waterfront Building Height Study. That plan was vetted by the Portland Planning Board of which Orlando Delogu was chair and the consultant on the study was Mitchell Rasor. It makes very clear the importance of placing “taller and larger buildings in the shadow of existing grade changes.” http://www.portlandmaine.gov/DocumentCenter/Home/View/3378 After reading Orlando Delogu’s piece in The Forecaster and in light of the 2004 Eastern Waterfront Building Height Study it would seem that his opinion and concerns about the views along upper Fore Street have changed now that the “wealthy” own the homes across from it.