Friends of Congress Square Park v. City of Portland, 2014 ME 63

Background

In Sept. 2013, Friends of Congress Square Park submitted a citizens’ initiative under Portland, Me., Code § 9-36 to amend the City’s land bank ordinance to create an "urban open public spaces" category, immediately designate 35 parcels (including Congress Square Park) into the land bank, and tighten the vote required to dispose of land bank property.
The initiative included a retroactivity clause making the amendments effective as of the filing date if approved by voters.
The City Clerk refused to issue official petition forms, asserting the proposal did not involve a "legislative matter." The City Council then voted to sell part of the Park under existing rules.
Friends sued in Superior Court under M.R. Civ. P. 80B (administrative review), sought declaratory relief, and alleged a § 1983 First Amendment violation; the Superior Court entered summary judgment for Friends and enjoined the City to issue petition forms.
The Maine Supreme Judicial Court considered whether the proposed amendments are "legislative" (and thus subject to direct citizen initiative under § 9-36) or impermissibly "administrative." The Court affirmed the Superior Court judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 9‑36 initiative power extends to these amendments	Friends: The proposal creates policy (new open‑space category), amends a legislative ordinance, and is therefore a legislative matter subject to initiative.	City: The immediate designation of specific parcels and process changes are administrative — they substitute voter judgment for the City’s vetting process and impede administrative functions.	Held: Amendments are legislative. Creation of category, designation of parcels, and procedural rules are laws of general applicability within council discretion and fit within § 9‑36.
Whether the initiative would unconstitutionally or practically impede government operations	Friends: The changes do not unduly burden day‑to‑day government functions.	City: Imposing retroactive designations and stricter disposal rules would disrupt municipal administration and decisionmaking.	Held: No serious impediment shown; increased disposal threshold applies only in limited circumstances and does not destroy efficient administration.
Whether undefined term "legislative" in § 9‑36 should be narrowly construed	Friends: Ambiguous terms must be read to facilitate citizen initiative and participatory democracy.	City: "Legislative" should exclude matters requiring specialized administration or delegated discretion.	Held: Court adopts common meaning of "legislative," liberally construes initiative powers, and applies factors showing the proposal is legislative.
Whether Superior Court remedy (ordering issuance of petition forms) was appropriate	Friends: Court properly compelled issuance under § 9‑36 after City’s refusal.	City: Refusal was lawful because proposal is administrative and outside initiative scope.	Held: Ordering the forms was proper; judgment affirmed and case remanded to determine attorney fees under § 1988.

Key Cases Cited

LaFleur ex rel. Anderson v. Frost, 146 A.2d 407 (Me. 1951) (upheld Portland Council’s limitation of initiative/referendum to "legislative matters" and interpreted scope).
D’Alessandro v. Town of Harpswell, 48 A.3d 786 (Me. 2012) (standards for de novo review of municipal-code interpretation).
Allen v. Quinn, 459 A.2d 1098 (Me. 1983) (liberal construction of initiative and referendum to encourage participatory democracy).
McGee v. Secretary of State, 896 A.2d 933 (Me. 2006) (purpose of direct initiative as encouragement of participatory democracy).
Albert v. Town of Fairfield, 597 A.2d 1353 (Me. 1991) (discretionary municipal acts may be subject to referendum/initiative).
McAlister v. City of Fairway, 212 P.3d 184 (Kan. 2009) (factors distinguishing legislative from administrative acts).
Vagneur v. City of Aspen, 295 P.3d 493 (Colo. 2013) (amendments to legislative acts typically legislative; discussion of parcel‑specific vs. general law).
Carter v. Lehi City, 269 P.3d 141 (Utah 2012) (law of general applicability vs. individualized decisions).