Educational Summary
GPL VS. The City of Portland
Superior Court, Case #Ap-24-035
Understanding Zoning Code Policy
Portland’s historic preservation ordinance is part of the city’s land use code, which was recently updated through the ReCode process. It creates a framework for designating and regulating landmarks and historic districts.
A historic district is an area with streetscapes or a collection of buildings connected by history, architecture, or a combination, which have a recognizable historic character and create a special sense of place. Buildings in districts are identified as “contributing” if they are older than 50 years old and contribute to the character and history of the district.
Portland’s preservation ordinance adopts national historic preservation standards and as such, is a Certified Local Government which provides access to valuable grant funding for the city and individual property owners and organizations.
The review standards are administered by the City of Portland staff and in larger circumstances, like demolition or new construction, the Portland Historic Preservation Board.
While demolition of contributing buildings is not permitted, the standards are created to provide some flexibility for necessary change. Policy has adapted to protect significant historic character and monitor change while allowing development to occur. It is not intended to prohibit change.
142 Free Street and the Portland Museum of Art Development
142 Free Street was constructed in 1830 as a theater – possibly the first in Maine after it became its own state – and soon redesigned as a church. In 1926 it was redesigned by prominent Maine architect John Calvin Stevens as the Portland Chamber of Commerce, and in the 1990s and early 2000s it was the home of the Children’s Museum of Maine.
142 Free Street was designated as a contributing building within the Congress Street Historic District in 2009, based on its significant history and intact façade dating to its John Calvin Stevens design.
The Portland Museum of Art (PMA) purchased 142 Free in 2019 and showed its footprint as the development site in a design competition for a major expansion.
Rather than seeking to incorporate 142 Free Street in its expansion, PMA applied to the city to change its status from “contributing” to “non-contributing,” to facilitate its demolition. This involves a review process with standards set out in the preservation ordinance, first by the Historic Preservation Board, then the Planning Board, and finally the City Council.
The preservation ordinance states that a building must be found to not meet any of four criteria for significance, or is too altered to have integrity, to determine it is noncontributing. Both the HP Board and Planning Board found that these criteria were not met due to the building’s significant 1926 design and only minor exterior changes since then, and denied the application.
Despite the recommendations against it from the two lower boards, City Council voted 6-3 in favor of a change in the status, citing alterations since 1830.
Greater Portland Landmarks filed a Rule 80B complaint against the City of Portland on the grounds that City Council did not sufficiently apply the standards in the preservation ordinance (which follows national historic preservation standards) in particular the integrity standard, and did not provide an adequate explanation why they did not follow the recommendations of both lower boards who have the professional expertise to advise Council on these matters.
Maine Superior Court Case No. AP-24-035, Appeal Denied Ruling
Justice Deborah Cashman of the Cumberland County Superior Court ruled GPL does not have standing in this case and City Council has the legal freedom to make any determination they choose related to historic designations, regardless of the standards.
The city council approved the preservation ordinance that is intended to guide their decision-making. In ruling that 142 Free Street was “non-contributing” in 2024, the council was required to follow the same criteria and standards as were followed at the time of designation in 2009. Instead, they reversed the original finding despite the fact that the building has not changed since it was designated.
This deeply concerning outcome sets a precedent for development in Portland's historic districts. Any property owner of a designated building can follow this path and take their appeal to City Council for a change in status, citing this ruling, essentially opening the option to demolish a structure regardless of the land use code.