A judge has dismissed a lawsuit brought against Portland for its rezoning of land where a senior housing project is planned, potentially ending one of a few legal challenges that have arisen as developers have rushed to take advantage of the hot housing market and residents have fought to protect their neighborhoods from change.

Cumberland County Superior Court Justice Thomas D. Warren ruled on April 19 that the zoning change on Stevens Avenue was not, as the plaintiffs alleged, inconsistent with the city’s Comprehensive Plan – a commonly used argument in such cases.

The question remains whether the decision will deter other residents from using the same tactic to try to block development in their neighborhoods, a phenomenon that’s resulted in a yet-to-be-built Bayside apartment complex getting cut in half, a citywide vote on whether to limit the heights of housing along the Eastern Promenade and, as recently as last week, out-of-state residents suing over an approved affordable housing project near the houses they own on Munjoy Hill.

“That’s one of the questions that comes up every time there’s a development. Will there be a lawsuit? Will there be a referendum?” said City Councilor David Brenerman, who worked with neighbors of the proposed Stevens Avenue project to find a compromise between their concerns and the developer’s plans.

“I hope we wouldn’t see these lawsuits in the future, but people certainly have a right to do it,” he said.

The developers already had shrunk the Stevens Avenue project in response to neighbors’ concerns when the City Council approved the change to a higher density zone in July to allow for nearly 250 senior housing units planned for the 13.5-acre site that includes the historic Sisters of Mercy Motherhouse, which would be renovated into 88 apartments, and athletic fields used by Catherine McAuley High School.

But some neighbors weren’t satisfied.

A group called Friends of the Motherhouse, along with two individuals, Raymond Foote and Barbara Weed, filed the suit against the city in October, alleging that the City Council violated the Comprehensive Plan by changing the zoning without creating a contract zone.

CHANCES OF WINNING WERE SLIM

In a motion for summary judgment filed in December, the developers, Motherhouse Associates and Sea Coast at Baxter Woods Associates, argued that the zone change was not inconsistent with the Comprehensive Plan but very much in line with its goals of creating more housing, particularly affordable and senior housing.

They acknowledged that the city’s zoning ordinance used to have a requirement that planned residential unit developments in the higher-density zone had to be implemented through a contract zone.

That requirement was removed in an amendment the City Council made to the ordinance at the same time it rezoned the land. Regardless, they argued, the proposal to build senior housing and an independent care facility offering some services would not qualify as a so-called planned residential unit development and the requirement was never mentioned in the Comprehensive Plan, only the zoning ordinance.

David Lourie, attorney for the plaintiffs, said it’s “very clear” that the intent of the Comprehensive Plan would require a contract zone in this situation.

But, he said, he knew the chances of winning this case were slim, considering the Maine Supreme Judicial Court has never ruled that a municipality’s decision was inconsistent with its Comprehensive Plan.

“I told my clients from the beginning that I wouldn’t spend my money fighting this thing,” Lourie said.

He doesn’t know yet whether they plan to appeal, but he would welcome the chance to try to change the court’s stance.

“Maybe lightning will strike and this will be the case,” he said.

In the judge’s decision, he cited a case from a couple of years ago, when West End residents unsuccessfully fought the conversion of the Williston-West parish house into an office building, that determined a project isn’t necessarily inconsistent with the Comprehensive Plan because it contradicts some aspects of it, as long as it adheres to other provisions.

He pointed out how the council’s decision advances the Comprehensive Plan’s goals to encourage growth, promote affordable housing, preserve historic structures, reuse existing buildings and update zoning to increase density along the city’s major roads.

CITY HALL THRILLED

“We’re thrilled to see the council’s decision to rezone the property was upheld and considered to be consistent with the Comprehensive Plan,” city spokeswoman Jessica Grondin said.

She said work on the Motherhouse is expected to start soon and a master plan for the site is under review by the Planning Board.

“I’m hoping we have an acceptable project and it will move forward because we certainly need this type of housing in the community,” Brenerman said.

 

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