Amid increased police overtime costs and complaints about environmental contaminants related to a local immigration processing center, Portland City Council passed a new land use fee December 3, targeting the unique impacts posed by the presence of detention facilities in Portland.

The ordinance was spurred by months of federal agents firing munitions, including tear gas, to quell protests at the Immigration and Customs Enforcement (ICE) building in South Portland, forcing a neighboring school to relocate and causing health concerns for people living in an affordable apartment complex across the street.

The ordinance has two components. First, it will require landlords who rent buildings used as detention centers to compensate residents and the city for actual costs incurred as a direct consequence of its tenants’ actions. Those costs could include things like police overtime, traffic management, fire and emergency medical responses, and environmental remediation. The collected money will reimburse impacted community members, and the city’s general fund.

Secondly, it adds a nuisance fee that will apply immediately—including for federal agents’ ongoing use of munitions at the ICE facility—meaning any instance of a nuisance caused by activities at a detention center would be levied against the building’s landlord. 

The specific amount of the fees is yet to be determined. Now that the ordinance has passed, the city must follow a standard rule-making procedure, directed by the city administrator and the city bureaus that handle code enforcement. The ordinance passed in a 9-2 vote, with Councilors Dan Ryan and Steve Novick voting no, and Eric Zimmerman absent.

The ordinance drew fierce debate when it was first introduced by City Councilors Angelita Morillo and Mitch Green on November 19. Opponents, including activists pushing the city to shut down the facility, said the efforts don’t go far enough, with some accusing elected officials of seeking to profit from ICE facilities in the city. Supporters said the ordinance could be one of many tools for the city and the public to seek redress for the unique impacts those facilities have on the community. 

The newly adopted ordinance also underscores the challenges municipal governments face in attempting to rein in President Donald Trump’s expansive immigration efforts. As the Trump administration continues testing longstanding legal precedent in the courts, local legislators are cognizant of the implications of new policies.

“We have very limited tools to address what is going on at detention facilities as a local government,” Morillo said prior to the vote. “We have very limited tools to address what is going on with our federal government. We have an opportunity to do something here today.”

The ordinance is not directed at any particular operator or facility. It regulates a category of land use permissions, something that is long-established in city code for a variety of uses, according to Suzy Deuster, Morillo’s policy adviser.

Local landlord Stuart Lindquist, who owns the building ICE operates out of on Macadam Avenue, did not address the Council about the ordinance. The city is currently investigating the facility for violations of its conditional use permit, and granted an extension to the law firm representing Lindquist until December 1. The city has not provided new updates on the process since the deadline passed.

The legislation raises a number of important legal considerations, as federal law has long established that a local government cannot selectively regulate a federal entity. That makes it challenging to pass local legislation that may impact the federal government, and requires extensive legal analysis if it is to hold up in the long term.

Tung Yin, a professor at Lewis and Clark Law School, said the US Supreme Court precedent set in McCullough v. Maryland outlines some considerations that could apply locally. Generally, that case held that local laws cannot single out a federal agency—like taxing a federal bank out of existence—but Yin said local laws with neutral language seeking to recover costs associated with specific consequences of any type of facility have a better chance of holding up to a legal challenge.

“If the city or state can come up with, let's say, a neutral description of the harms that it's trying to redress, and some of the entities that are causing those harms happen to be federal agencies, then they have a much better chance of being able to do that,” Yin said.

Councilor Novick, who voted against the ordinance, raised a related hypothetical during the December 3 meeting, saying he was concerned about the principle embedded in the legislation, arguing that any facility that generated protests—for instance, an abortion clinic—could subject a land owner to a fee.

“If there’s enough protest against the abortion clinic and enough city costs, then the abortion clinic won't be able to pay those and would have to shut down,” Novick said.

Novick said he would feel more comfortable voting for a nuisance fee associated with a list of chemical agents rather than charging the owner of a building that may generate a protest response for any reason.

Council President Elana Pirtle-Guiney clarified that the code language applies to a specialized type of land use defined as detention facilities, and abortion clinics would fall under the land use type for health care facilities.

Despite her colleague’s skepticism, Morillo’s office thinks the ordinance will survive legal challenges. Deuster said many different land use categories already create some level of impact, like traffic or noise, and that doesn’t mean they create the same impacts or require the same regulatory tools.

“Cities routinely distinguish between land uses based on the specific, recurring harms they generate (a nightclub creates a different pattern and magnitude of externalities than a daycare, even if they both produce noise),” Deuster told the Mercury in an email. “Detention facilities generate a pattern of burdens that other land uses do not.” 

Duester said the city considered how the local ordinance could interact with longstanding case law.

“The Supreme Court has long held that a local law isn’t unconstitutional merely because it could raise costs for the federal government, so long as it is neutral and nondiscriminatory,” Deuster said. “Neutrality doesn’t require pretending that every land use operates according to the same incentives or generates the same impacts. Private landlords leasing to detention operations face little economic pressure to mitigate the harms those uses predictably generate, impacts that daycares, parks, and other routine land uses simply do not produce.” 

Cities are empowered to use tools like impact fees to ensure that private landowners internalize the real-world costs of the land uses they choose to host, in service of reducing those harms and protecting the communities that bear them, according to Deuster. 

“Our ordinance reflects that principle,” Deuster said.

Before the ordinance passed, some community members voiced concerns in public testimony that the dollars brought to the city would pay for police overtime rather than going to people impacted by federal agents’ practices. In voting to approve the ordinance, Councilor Sameer Kanal outlined how the city’s process avoids that conflict in reality, largely due to an amendment he brought during the budget process earlier this year, which limits the use of police overtime on protests.

“In addition to the benefits from a fiscal responsibility perspective, that is mitigating the concern that... I heard, that this funding stream for overtime would be used to increase overtime by Portland Police at the Macadam facility,” Kanal said.