I teach and research in the areas of property, land use, real estate and local government law at the University of Maine School of Law, so a number of my friends in Portland have been asking me how I’m planning to vote on the parks referendum June 10.

Although everyone who knows me knows how much I love parks and open space, I’m planning to vote no on Tuesday, primarily because research suggests that direct democracy and land use decisions do not mix well.





Direct democracy — letting the people vote directly on issues — makes a lot of sense for certain things. I believe that direct democracy is especially important in the context of politically contentious issues such as marijuana legalization and marriage equality. Those are areas of the law where politicians are afraid to bring issues to a vote or to take unpopular stances for fear of being voted out of office. But land use decisions are different.

Land use decisions, including decisions about what to do with public space, involve nuanced analyses concerning property values, economics, development projections and long-term planning goals. If you ask a random member of the public whether we should “save our parks,” who would say no? We love our parks! But we, the people, do not have the same insight into the competing development forces and policy considerations that the planning department does.

Professional planners went to graduate school to study planning and urban design; they are land use experts and should have the best interests of the city in mind. Generally (though not always), the city council’s opinion is informed and guided by planning department research and suggestions. To the extent that we believe in comprehensive planning (and granted, not everyone does), we need to leave room for the experts in the administrative and executive agencies to make decisions, and those decisions should inform our locally elected decision makers.

In this instance, I certainly do not think that the city did a great job of negotiating the Congress Square deal. Portland could have gotten a lot more money for this space, and policymakers should inform themselves about what other cities are doing when the development market heats up. Namely, the city should be more aggressive in negotiating “exactions” from developers.

This is a perfect example of a situation where that would make sense. If a private developer needs discretionary permits from the city in order to build on pre-existing public space, it makes sense, and is legally valid, for the city to require the developer to provide additional public space to make up for that which is lost. This could take the form of privately owned public open space on-site (such as a rooftop park on top of the new events center that is open to the public during business hours) or the purchase of land somewhere else in town that is then turned into public space on the developer’s dollar.

This is the issue that we need to be talking about as property values and development pressures increase in Portland: What do we want our city to look like, and how much can we ask of the developers who want to change the status quo (after all, they are the ones with the money and the proposals for change)?

However, this referendum does not address that issue. As for the state of Congress Square, I love the Small Axe food truck, and the placement of tables has certainly activated the space; even minimal, temporary interventions such as these are important first steps in creating more successful urban open spaces. But it is unclear to me how long this new vibe will last given that it is funded by concerned citizens instead of by the city. And the hotel developer should have a long-term incentive to work with the city to make Congress Square an interesting and active space.

Portland is going to change. I believe that the city needs flexibility to strike land use deals with developers to ensure that change is pursuant to well-thought out plans. If Question 1 passes, that would be made much more difficult. For all of these reasons, I’ll be voting no.

Sarah Schindler is an associate professor at the University of Maine School of Law.