‍Park Initiative Wins in Superior Court, But City of Portland Is Appealing

(Note: Along with litigation co-counsel Sarah McDaniel, I represent Friends of Congress Square Park.)

In the September 2013 E-Bulletin, I wrote about the City of Portland’s attempt to sell most of a downtown city park to an adjacent hotel. Meanwhile Friends of Congress Square Park, a local nonprofit organization, is seeking to bring a citizens’ initiative that would protect that particular park and a host of other city parks from being sold or developed. However, the City’s attorney rejected the Park Initiative on a variety of technical grounds, and the Friends filed suit.

In a decisive ruling on October 31, the Cumberland County Superior Court ordered the City to issue the petition forms, resoundingly rejecting the City’s technical objections. Although the petitions were issued and the Friends are gathering signatures, the City has appealed to the Maine Supreme Court. Assuming the Supreme Court upholds the Superior Court, the initiative will likely go to the voters in June.

First enacted as part of the Maine Constitution in 1908, the citizens’ initiative (and its cousin, the People’s Veto) is a powerful tool for Maine citizens to bring about change in state law or municipal law. At the municipal level, citizens’ initiatives for Maine towns are governed by 30-A M.R.S. Ch. 121. However, most of Maine’s 23 cities have their own ordinances that govern citizens’ initiatives, and the case against Portland dealt mostly with the City ordinance and not state law.

Although most land trusts do not commonly engage in political activities such as promoting referenda of citizens’ initiatives, this case is still worth keeping an eye on for its implications for the protection of municipal park properties. The Friends hope that this case will set precedent in the right direction throughout Maine by affirming the right of citizens and nonprofit corporations to bring citizens’ initiatives affecting municipal parks.

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Land Trust Alliance and Maine Coast Heritage Trust to File Joint Amicus Brief in FSHT Case

In the May 2013 E-Bulletin and September 2013 E-Bulletin, I wrote about Francis Small Heritage Trust’s (FSHT) court action against the Town of Limington to obtain property tax exemption. The case is currently on appeal to the Maine Supreme Court. The Land Trust Alliance and Maine Coast Heritage Trust have agreed to file a joint amicus curiae brief in support of FSHT. On behalf of the Alliance, I will be co-counseling with Karin Marchetti Ponte to write this brief. The brief is expected to focus on the various ways in which land conservation is a charitable purpose, and the public benefits derived from land conservation activities.

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Property Tax Exemption Bill Before Taxation Committee

Speaking of property tax exemption, a bill is coming to a work session before the Taxation Committee of the Maine Legislature next week that could undermine the current exemption law that benefits many Maine land trusts. L.D. 936 is a placeholder bill that was carried over from the last legislative session, and would expanding municipalities’ ability to charge tax-exempt nonprofit property owners service charges for municipal services. Land trusts are likely to be especially affected by any changes, because more so than any other kind of nonprofits, their principal assets are in the form of real property.

The Maine Association of Nonprofits is strongly encouraging nonprofits of all kinds to contact members of the Taxation Committee to let them know how changes to the property tax exemption laws might affect their organizations.

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Upcoming Event: Upcoming Event: Fourth Symposium on Advanced Legal Topics in Land Conservation

Date: February 5 & 6, 2014
Location: Reno, Nevada

Sponsor: Land Trust Alliance

I will be one of the panelists at this Symposium, speaking on how various states, including Maine, have altered their conservation easement laws to regulate amendment and termination.

The Symposium is specifically tailored to attorneys who work with land trusts, and will deliver information that is impossible to find at any other single program.

Gather with your colleagues to take advantage of this rare opportunity to discuss and contribute insight on these complex legal issues:

Dissect a breach of contract conservation case to develop cogent pretrial strategies.

• Analyze four leading conservation and tax cases for practice implications and new trends.
• Drill down into nuances and negotiation of surface use agreements for oil and gas extraction.
• Bring your collaborative problem-solving skills to an intensive six-hour practical examination of land trust risk assessment focusing on the challenges of conservation easement modification.

For more information and to register, click here.

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CIRCULAR 230 DISCLOSURE: Any federal tax advice contained in this communication or attachment is not to be used for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending any transaction or matter addressed in this communication.