Friends of Congress Square Park v. City of Portland , 91 A.3d 601 ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 63
Docket: Cum-13-502
Argued: April 9, 2014
Decided: May 6, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
FRIENDS OF CONGRESS SQUARE PARK et al.
v.
CITY OF PORTLAND
GORMAN, J.
[¶1] The City of Portland appeals from a judgment entered in the Superior
Court (Cumberland County, Wheeler, J.), pursuant to M.R. Civ. P. 80B, ordering
the City to issue petition forms for a citizens’ initiative submitted by Friends of
Congress Square Park and four Portland residents1 to amend the City’s land bank
ordinance. Because the proposed amendments are legislative, we conclude that the
citizens’ initiative powers extend to them, and we affirm the judgment.
I. BACKGROUND
[¶2] In August of 2012, the City entered into negotiations to sell a portion of
Congress Square Park, an approximately 14,300-square-foot urban park in the
1
Friends of Congress Square Park is a Maine nonprofit corporation incorporated in 2013. The other
appellees—Frank Turek, David LaCasse, Herbert Adams, and Patricia O’Donnell—are residents of
Portland. The plaintiffs-appellees are collectively referred to as “Friends.”
2
City’s ownership. Friends was established to oppose the planned sale of the Park
and to find ways to protect other urban open spaces in Portland.
[¶3] On September 6, 2013, Friends filed with the City Clerk a “direct
initiation of legislation,” also known as a “citizens’ initiative,” to amend the City’s
land bank ordinance.2 The proposed amendments would create a new category of
land bank property called “urban open public spaces” and designate thirty-five
parcels, including Congress Square Park, as belonging in that category. The
amendments would also require the approval of eight of nine members of the City
Council—or, alternatively, the vote of six members of the City Council, a
favorable recommendation from the land bank commission, and a majority vote in
a municipal election—in order to dispose of property in the land bank. Because
Friends attached a retroactivity clause to the proposal, the amendments would
become effective as of the filing date of the citizens’ initiative, September 6, 2013,
should it be approved by Portland voters.
[¶4] Friends submitted the initiative in accordance with the procedure in
section 9-36 of the City Code. See Portland, Me., Code § 9-36 (Mar. 4, 1991).
Section 9-36 directs the City Clerk, upon receipt of such an initiative, to prepare
2
The City established the land bank, the land bank commission, and the land bank fund in 1999 “to
ensure the conservation and preservation of limited open space with important wildlife, ecological,
environmental, scenic or outdoor recreational values.” Portland, Me., Code § 2-42(a) (Apr. 5, 1999). The
parties refer to §§ 2-41 to 2-45 of the City Code as the “land bank ordinance,” and we follow suit.
3
and return the official petition forms to the ten registered voters comprising the
petitioners’ committee so that the forms may be circulated for the collection of
signatures. See id. § 9-36(c). If the requisite signatures are collected, the City
must then hold a public hearing and must either enact the desired ordinance or
place the initiative on a ballot. See id. § 9-36(f). On September 13, 2013, the City
notified Friends that the City Clerk3 would not issue the petition forms because,
inter alia, the proposed amendments do not affect any legislative matters. Three
days later, the City Council approved, by a six-to-three vote, the sale of 9500
square feet of Congress Square Park. The approval is in compliance with the
existing City Code,4 but it would not satisfy the proposed amendments.
[¶5] On September 25, 2013, Friends filed a complaint in the Superior
Court requesting a judicial review of the City’s refusal to issue the petition forms
pursuant to M.R. Civ. P. 80B (Count I); seeking a declaration pursuant to the
Declaratory Judgments Act, 14 M.R.S. §§ 5954, 5960 (2013), that the petition is
the proper subject of a citizens’ initiative (Count II); and claiming that the City’s
3
The City Clerk does not have express authority to reject citizens’ initiative proposals submitted in
compliance with the petition procedure in the City Code on grounds that they are not legislative.
See Portland, Me., Code § 9-36 (Mar. 4, 1991.) Friends did not raise this issue on appeal. It is therefore
waived. See Mehlhorn v. Derby, 2006 ME 110, ¶ 11, 905 A.2d 290.
4
Under current law, the disposition of City-owned property not in the land bank requires the approval
of five members of the City Council. See Portland, Me., Charter art. II, § 11 (2013). The disposition of
land bank property requires a positive recommendation of the land bank commission and the approval of
six members of the Council. See Portland, Me., Code § 2-43(c) (Apr. 5, 1999). Because Congress Square
Park is not a land bank property, a majority Council vote was enough to proceed with the sale.
4
refusal to issue the forms violated the petitioners’ constitutionally protected right to
free speech pursuant to 42 U.S.C.A. § 1983 (West, Westlaw through P.L. 113-92
(excluding P.L 113-76, 113-79, and 113-89), approved Mar. 25, 2014)) (Count III).
Friends also filed a motion for injunctive relief seeking to compel the City to issue
the forms. On October 31, 2013, the court entered a summary judgment in favor of
Friends on Counts I and II, and entered a permanent injunction requiring the City
to issue the petition forms.5 The City filed a motion to stay the permanent
injunction, which the court denied.
[¶6] The City filed a timely appeal.
II. DISCUSSION
[¶7] We review municipal decisions directly, without deference to the
Superior Court’s ruling on the intermediate appeal. D’Alessandro v. Town of
Harpswell, 2012 ME 89, ¶ 5, 48 A.3d 786. Because this appeal raises solely legal
issues concerning the interpretation of the City Code, we review de novo for errors
of law the City’s refusal to issue the petition forms to Friends. See id.
5
The parties stipulated that the City is liable on Count III pursuant to 42 U.S.C.A. § 1983 (West,
Westlaw through P.L. 113-92 (excluding P.L 113-76, 113-79, and 113-89), approved Mar. 25, 2014) if
the Superior Court judgment on Counts I and II is affirmed, leaving unresolved only the award of attorney
fees pursuant to 42 U.S.C.A. § 1988 (West, Westlaw through P.L. 113-92 (excluding P.L. 113-76,
113-79, and 113-89), approved Mar. 25, 2014). The court’s judgment on Counts I and II was therefore a
final judgment. See M.R. Civ. P. 54(b)(2) (stating that, in an action in which there is a claim for attorney
fees, a judgment entered on all other claims shall be final as to those claims unless the court otherwise
finds).
5
[¶8] The City contends that the initiative is not authorized by the City Code
because the Code restricts initiatives to legislative matters and the proposed
amendments are administrative.6 The Code provides, in pertinent part:
The submission to the vote of the people of any proposed ordinance
dealing with legislative matters on municipal affairs or of any such
ordinance enacted by the city council and which has not yet gone into
effect may be accomplished by the presentation of a petition therefor
to the city council . . . .
Portland, Me., Code § 9-36(a) (emphasis added). Nowhere in the City Code is the
term “legislative” defined.
[¶9] We examine an ordinance for its plain meaning. D’Alessandro,
2012 ME 89, ¶ 5, 48 A.3d 786. We construe undefined or ambiguous terms
“reasonably with regard to both the objects sought to be obtained and to the
general structure of the ordinance as a whole,” Adams v. Town of Brunswick,
2010 ME 7, ¶ 11, 987 A.2d 502, and give such terms their “common and generally
accepted meaning unless indicated otherwise by their context in the ordinance,”
Jade Realty Corp. v. Town of Eliot, 2008 ME 80, ¶ 7, 946 A.2d 408. We often rely
on dictionary definitions to determine the common and generally accepted
meaning of undefined or ambiguous terms. Bangs v. Town of Wells, 2000 ME 186,
¶ 19 n. 9, 760 A.2d 632. We liberally construe grants of initiative and referendum
6
The City also contends that the amendments constitute an appropriation and are an invalid exercise
of the people’s veto powers pursuant to the City Code. We find these arguments unpersuasive.
6
powers so as to “facilitate, rather than to handicap, the people’s exercise of their
sovereign power to legislate.” Allen v. Quinn, 459 A.2d 1098, 1102-03
(Me. 1983); see also McGee v. Sec’y of State, 2006 ME 50, ¶ 25, 896 A.2d 933
(“The broad purpose of the direct initiative is the encouragement of participatory
democracy.”).
[¶10] As a preliminary matter, we interpret the plain language of the City
Code to mean that the scope of the initiative power is limited to those initiatives
affecting legislative matters, as opposed to administrative matters. Our
interpretation today flows naturally from our analysis in LaFleur ex rel. Anderson
v. Frost, 146 Me. 270, 80 A.2d 407 (1951). In LaFleur, petitioners sought to enact
an ordinance establishing referendum and initiative powers in the City of Portland
that reached all municipal affairs. Id. at 272, 290-91. The City Council, however,
enacted a different ordinance—the precursor to section 9-36(a)—limiting these
powers to “legislative matters on municipal affairs.” Id. at 278. In upholding the
validity of the City Council’s actions, we stated that the newly adopted scope of
the initiative and referendum powers extended “not to all of the municipal affairs
but to certain of the municipal affairs” and thereby gave meaning to the words
“legislative matters.” Id. at 283 (emphasis added); cf. Blue Yonder, LLC v. State
Tax Assessor, 2011 ME 49, ¶ 13, 17 A.3d 667 (stating that we will not interpret a
7
statute “in a manner that would render some of the language superfluous and
meaningless”).
[¶11] We next turn to whether the proposed amendments are legislative or
administrative. The City concedes that the addition of a category of “urban open
public spaces” to the land bank ordinance would set new policy, making such an
act legislative and thereby falling within the permitted scope for direct initiation of
legislation. It contends, however, that the remaining amendments proposed by
Friends—particularly the immediate designation of thirty-five properties as land
bank properties—are administrative because they circumvent the existing “vetting
process” by which the land bank commission identifies prospective land bank
properties in cooperation with City departments and members of the public and
then makes recommendations to the City Council based on the information
gathered during that process. The City essentially argues that, because these
amendments seek to substitute the judgment of the voters for that of persons “truly
qualified to be making decisions regarding land bank property,” they are
impermissibly administrative.
[¶12] Both parties draw largely from extra-jurisdictional case law to argue
their respective positions. This is because, to date, we have only had occasion to
state, in dictum, that where a “municipality has been given the discretion to do as it
wishes . . . the action of the municipality’s legislative body is subject to the
8
referendum procedure,” regardless of whether the inquiry is premised on
“municipal versus state affairs or legislative versus administrative duties.” Albert
v. Town of Fairfield, 597 A.2d 1353, 1355 (Me. 1991) (holding that a town
council’s acceptance of land for a town way was a municipal affair subject to
referendum powers, as opposed to a state affair). Our statement in Albert is
consistent with the generally accepted definition of “legislative power” as the
“power to make laws and to alter them.” Black’s Law Dictionary 983
(9th ed. 2009). Discretion is likewise a consideration in other jurisdictions that
have attempted to discern legislative from administrative matters. See 5 Eugene
McQuillin, The Law of Municipal Corporations § 16:53 (3d ed. 1978) (stating that
“[w]here discretion is left to the local government as to what it may do, when the
local government acts, it acts legislatively”).
[¶13] Because “no single act of a governing body is ever likely to be solely
legislative or solely administrative,” however, courts have struggled to separate
discretionary legislative acts from administrative acts. McAlister v. City of
Fairway, 212 P.3d 184, 194 (Kan. 2009). In their attempts to draw distinctions,
courts have considered a variety of factors.7 Although no single factor has been
7
For example, courts consider an act to be legislative if it: (1) makes new law, rather than executes
existing law, see McAlister v. City of Fairway, 212 P.3d 184, 194 (Kan. 2009); Kearney v. City of Little
Rock, 302 S.W.3d 629, 634 (Ark. Ct. App. 2009); State ex rel. Upper Arlington v. Franklin Cnty. Bd. of
Elections, 895 N.E.2d 177, 181 (Ohio 2008); (2) proposes a law of general applicability, rather than being
based on individualized, case-specific considerations, see Carter v. Lehi City, 269 P.3d 141, 154
9
universally accepted or found to control the outcome of a controversy, the City’s
contention that the amendments are administrative is not persuasive when
evaluated against any of them.
[¶14] The amendments deal with matters that are entirely within the
discretion of the City’s legislative body, the City Council. Moreover, the Council
has never delegated its authority to establish the process by which properties are
added to or removed from the land bank. Although the land bank commission may
recommend the inclusion or exclusion of property from the land bank, the ultimate
authority to acquire or dispose of such property remains with the Council.
The Council has the undelegated and exclusive power to make laws that not only
declare the purpose of the land bank ordinance but also laws that establish the
ways and means—the process—by which that purpose is achieved. It also has the
power to amend those laws at its discretion. See Black’s Law Dictionary 983
(Utah 2012); (3) relates to subjects of a permanent or general character, as opposed to subjects that are
temporary in operation and effect, see Vagneur v. City of Aspen, 295 P.3d 493, 505 (Colo. 2013);
(4) declares a public purpose and provides for the ways and means to accomplish that purpose, rather than
implementing existing policy or dealing with a small segment of an overall policy question,
see McAlister, 212 P.3d at 194; (5) requires only general knowledge, rather than specialized training and
experience or an intimate knowledge of the fiscal or other affairs of government, see id.; (6) does not
involve a subject matter in which the legislative body has delegated decisionmaking power for local
implementation, see id. at 195; see also 5 Eugene McQuillin, The Law of Municipal Corporations § 16:53
(3d ed. 1978); (7) establishes or amends zoning laws, see Friends of Denver Parks, Inc. v. City and Cnty.
of Denver, 2013 WL 6814985, --- P.3d. --- (Colo. App. 2013); but see Vagneur, 295 P.3d at 510 (stating
that the change in use of particular parcels are case-specific action that “generally do not reflect the
exercise of legislative power”); (8) is informed by historical examples of legislative acts, such as
longstanding parallels in statutes enacted by legislative bodies, rather than traditionally executive acts,
see Carter, 269 P.3d at 155; or (9) is an amendment to a legislative act, see Vagneur, 295 P.3d at 505
(presuming that “where an original act is legislative, an amendment to that act is likewise legislative”).
10
(defining “legislative power” as the “power to make laws and to alter them”); see
also McAlister, 212 P.3d at 194 (stating that “[a]cts that declare [a] public purpose
and provide ways and means to accomplish that purpose” are generally considered
legislative). The amendments proposed by Friends would declare a new public
purpose: the protection of a new category of open space. The amendments would
also establish the ways and means to achieve that purpose: the immediate inclusion
of thirty-five properties in the land bank and the imposition of a new process for
removing any properties from the land bank. We are not persuaded that this
proposed act should be characterized differently than the original legislative act
that declared a public purpose to protect certain types of open space and set forth a
process to achieve it. See Vagneur v. City of Aspen, 295 P.3d 493, 505
(Colo. 2013) (stating that “where an original act is legislative, an amendment to
that act is likewise legislative”).
[¶15] In addition, the Friends’ initiative proposes a law of general
applicability rather than one based on individualized, case-specific considerations.
See Carter v. Lehi City, 269 P.3d 141, 154 (Utah 2012). Although Friends
acknowledges that its formation was motivated by the City’s efforts to sell
Congress Square Park, its initiative does not solely involve the Park: the
amendments would add many other properties to the land bank, including some of
the City’s most heavily used open spaces. Indeed, there is no meaningful
11
difference between the designation of parcels as land bank properties and the
legislative adoption of a zoning scheme that creates open space districts and lists
specific parks by name for inclusion within those districts. See, e.g., Boston,
Mass., Zoning Code, vol. I, art. 33, §§ 33-5, 33-17 (2014) (establishing open space
districts, including “Community Garden,” “Parkland,” “Recreation,” and “Urban
Plaza” subdistricts, and including a list of so-designated existing city parks). In
both instances, the decisions involve making land use choices based on competing
policy considerations—a task best suited for legislative bodies. See Summerwind
Cottage, LLC v. Town of Scarborough, 2013 ME 26, ¶ 9, 61 A.3d 698 (stating that
the drawing of zoning boundaries is a legislative, not an administrative, function).
[¶16] Finally, and most significantly, although courts rely on wide-ranging
considerations to determine whether acts are legislative or administrative, when
courts focus on the effects of the exercise of the initiative power rather than the
intrinsic characteristics of the act in question, there appears to be a consensus: an
act exceeds the scope of the initiative power if it compels or bars action by elected
officials that would seriously hamper governmental functions. See 5 Eugene
McQuillin, The Law of Municipal Corporations § 16:53; see also 62 C.J.S.
Municipal Corporations § 386 (2014) (stating that initiative powers “should not be
so interpreted as to destroy or impair the efficacy of some other governmental
power.”)
12
[¶17] This final point does not rely on metaphysical attempts to determine
the “true character” of the acts at issue, but is based on the practical policy
underlying the substantive law. As the City correctly explains, the rationale for
circumscribing participatory democracy is to avoid “destroy[ing] the efficient
administration of government.” See 42 Am. Jur. 2d Initiative and Referendum § 8
(2014). Indeed, the exemption of administrative matters from referendum and
initiative powers “grows out of the recognized need of local governments to
engage in their ordinary business with some degree of insulation from the
disruptive effects of public participation.” Jeff C. Wolfstone, The Case for a
Procedural Due Process Limitation on the Zoning Referendum: City of Eastlake
Revisited, 7 Ecol. L. Q. 51, 85 (1978). Limiting the types of issues that may be
addressed through direct citizen action “reflects an often unspoken policy
assumption that the need for efficient government outweighs the added value of
public participation.” Id.
[¶18] Here, nothing within the amendments proposed by Friends would
seriously impede the day-to-day operations of the City, the City Council, or even
the land bank commission. The immediate inclusion of thirty-five City-owned
properties in the land bank does not force any burdensome responsibilities onto the
land bank commission, and not every City Council decision to include, transfer, or
dispose of property in the land bank would have to be taken to the voters. The
13
more stringent voting process would be triggered only if the City attempts to
dispose of land bank property without garnering eight votes of the City Council—
a scenario not likely to occur so regularly that it would destroy or disrupt the City’s
efficient functioning.
[¶19] In light of our liberal construction of grants of referendum and
initiative powers and the policy rationale for limiting those powers, we hold as a
matter of law that the amendments proposed by Friends are within the scope of the
citizens’ initiative power pursuant to section 9-36(a) of the City Code.
The entry is:
Judgment affirmed. Remanded to the Superior
Court for a determination of attorney fees pursuant
to 42 U.S.C.A. § 1988 (West, Westlaw through
P.L. 113-92 (excluding P.L. 113-76, 113-79, and
113-89), approved Mar. 25, 2014)).
On the briefs:
Danielle West-Chuhta, Esq., and Jennifer Thompson, Esq., City
of Portland, Portland, for appellant City of Portland
Sarah A. McDaniel, Esq. Douglas McDaniel Campo & Schools
LLC, PA, Westbrook, and Robert H. Levin, Esq., Portland, for
appellees Friends of Congress Square Park, Frank R. Turek,
David R. LaCasse, Herbert C. Adams, and Patricia M.
O’Donnell
14
At oral argument:
Jennifer Thompson, Esq., for appellant City of Portland
Sarah A. McDaniel, Esq. for appellees Friends of Congress
Square Park, Frank R. Turek, David R. LaCasse, Herbert C.
Adams, and Patricia M. O’Donnell
Cumberland County Superior Court docket number AP-2013-55
FOR CLERK REFERENCE ONLY