1- City Attorney Bob Sullivan said after this week’s Historic District Commission meeting that the city will not issue a cease and desist order against Portwalk– although he said it probably would for smaller projects– even though revelations of multiple violations of Portsmouth’s land use laws sent ripples of shock through the city.
The scandal recently broke when the plastic started coming off the project, and City Manager John Bohenko emailed the City Council word of myriad discrepancies between city-approved plans and the real thing.
Aside from an HDC work session set for next month, what to do about the infractions was left unresolved after a many-hours-long HDC meeting dragged on well into the night. And a rambling presentation by the project’s architect left lots of folks, including the HDC, clearly exhausted and confused about the nature and sheer number of illegal changes, switches and permutations of doors, windows, adornments, storefronts and more to the huge downtown Historic District development.
One of Portwalk’s developers, Jeff Johnston of the Boston-area firm Cathartes Private Investments http://www.cathartesprivate.com/ apologized to the HDC for all the changes made to the project without city land use boards’ permission. It happened in good faith, he said. He was “deeply sorry.” Nobody tried to hide anything.
PEOPLE TO THE HDC: RESTORE THE PUBLIC TRUST
But the mood was tense at City Hall, as speaker after speaker expressed shock at Portwalk’s apparent flagrant disregard for the local process.
“I’m appalled,” said Larry Cataldo.“…They forgot?… Do they think they’re above the residents? Are they trying to deceive, trying to make fools of the HDC and the City of Portsmouth?…Please don’t slap them on the wrist!”
“I am outraged!,” objected Bob Shouse, citing “callous abuse” of the rules.
It’s all about the process, added City Councilor Stefany Shaheen. As a homeowner, Shaheen said she had to go eight times before the HDC for approval of “very minor changes” to her house. Such is the erosion of public trust that the board needs to restore confidence in the process.
Likewise, Patricia Bagley said she and her husband had to spend thousands of dollars to remove ledge when the city found their house diverged mere inches from HDC-approved plans. “I am personally offended,” she added.
(In a rare break from the City Hall psychodrama, one of Portwalk’s unauthorized changes– to fence off a gas regulator—actually drew a derisive laugh from the audience. That’s because ironically, the Portwalk debate followed a long, excruciatingly detailed exchange between the HDC and another developer, Mark McNabb, over his request for HDC permission to build a sidewalk structure to hide restaurant garbage in front of the new Martingale.)
PRAISE FOR PORTWALK
A few speakers praised Portwalk for giving them jobs. One expressed admiration for its architectural style, and claimed the rulebreakers’ critics wanted them to dangle from its cranes. Attorney Peter Loughlin, a City Hall insider who often represents developers before city land use boards, urged the HDC not to be “vengeful”. Former Mayor and developer Peter Weeks asked the board not to listen to “anti-development” sentiment.
MAKE THEM PLAY BY THE RULES
Others said it’s not about development—it’s about making everybody play by the same rules. It’s about being sophisticated, not provincial. It’s about looking out for the people of Portsmouth, and not letting the big boys– many from out-of-town– walk all over a pretty little New Hampshire city that made a name for itself by saving its special character.
The bottom line, said lawyer Duncan MacCallum, is that developers should keep their promises. “No project in the history of Portsmouth has been more controversial, or generated more hue and cry and outrage and wailing and gnashing of teeth” than Portwalk, he said. A mere slap on the wrist would send a message to other developers that they can pull the “same stunt.” “Developers are prolific at making excuses. You will be inviting people to thumb their noses at you.”
Across the city, the very fact that Portwalk was ever approved “amazes” people, developer Joe Caldarola remarked towards the end of the long public hearing. If the board “fiddles with the details, distrust in the community is going to skyrocket because it means the big boys can get away with anything—too big to fail—and the rules are not the same for everybody.”
2- HDC TURNS DOWN 40 BRIDGE STREET
In other HDC action that gave Portsmouth’s emerging grassroots smart-growth movement a much-needed boost, the HDC shot down the second extension of a permit for a huge building at 40 Bridge Street that would have gone up a few feet from a house older than the John Paul Jones House nearby. The HDC decision came after a passionate plea from a resident of the historic house, who said it was built 12 years before George Washington’s birth and 38 years before the John Paul Jones House was built. The HDC “No” came after a convoluted legal fight between two developers– described by dueling lawyers with parking at the crux– unfolded like a soap opera plot in Council Chambers.
3- “PINK HOUSE” ALL BUT REPLACED, DESIGNER TELLS CITY OF DRY ROT
But while the Portwalk infractions were being pondered and puzzled over on Hospital Hill, worried neighbors had been asking the city about yet another Portsmouth development proceeding at breakneck pace— even in snowstorms– the so-called “restoration” project at 428 Pleasant Street (aka the “pink house”) in the heart of the Historic District at a gateway to downtown and Market Square– the very project that caused the formation of Portsmouth Now! last spring.
Neighbors had initially challenged the condo project as an illegal expansion of a non-conforming use. But on May 1, 2013, the HDC approved it anyway. Under the deal, the original early 1800′s federal house was to be “restored,” ie. re-sided, re-trimmed, split into three condos with new wooden windows and parking in the backyard. Only the rear addition was to be demolished and totally rebuilt.
As of this writing, almost all of the historic main structure has been replaced– without a demolition permit. Most of the original period wood has been removed from the building, including valuable period timbers taken away by a truck a neighbor photographed parked in the Portsmouth Housing Authority lot next door.
Original crown molding and mantels have been torn out. One of two original brick chimneys was dismantled and taken down all the way to the basement. The developer promised the HDC to rebuild any chimney he took down, but a neighbor who peered into a window in the building reports that new beams now block the spot where a replacement chimney would go up. The whole third floor and roof have been removed and are being hastily replaced by a new roof some neighbors worry looks several inches higher than the original roof– which would affect the rhythm of the street by putting the roof-line off-sync with the historic house next door. (Late this week, the city was still relying on the designer’s word that the new roof is no higher than the original, and his assertion that the wood had to be removed due to dry-rot). And three sides of the property have been clear-cut of trees, including a healthy maple 18 inches in diameter. Instead of branches, tangles of electric wires, bulky new condos, and a much newer 1950′s style building once screened off by trees now define a formely quaint 19th century Portsmouth side street.
And all this is happening in the heart of Portsmouth’s world-famous historic district—within plain sight of City Hall.
“Where are the regulators? Where are the people who are supposed to enforce the decisions of the boards? The Inspection Department? The Planning Department? Zoning enforcement? Where are the people who are supposed to make sure the approved plans are adhered to?” asked an upset neighbor. “They were supposed to restore the house. David Adams is restoring a house. This is not restoration!”
Hearing the story, another local contractor complained that the city once made him take out a demolition permit for far less. But the city apparently says it’s OK.
4- HDC’S WYCKOFF LASHES OUT AT CONCERNED CITIZENS AND KENNEDY
Meanwhile back at City Hall, this Wednesday’s late-night HDC showdown revolved around what consequence the HDC should impose on Portwalk.
Shock rippled through the audience about four hours into the meeting when HDC-member John Wyckoff verbally lashed out at those who showed up to object to Portwalk’s actions and at City Councilor/HDC-member Esther Kennedy for “negativity.” Wyckoff’s outburst came after Kennedy pressed the developer to find out what compensation he was ready to offer for betraying the city’s trust.
As an educator, when she calls miscreants to her office, Kennedy told Johnston (the developer), she asks them how they plan to make up for it.
“What do you feel should be your punishment for letting down the city?” she asked. The HDC once made a homeowner on The Hill rebuild a chimney they took down, she pointed out.
In a verbal attack that stunned many, Wyckoff reacted by delivering a tongue-lashing at Kennedy. “We shouldn’t even be attempting to do this!,” he exploded. He said he was “really upset” by what he called the crowd’s and Kennedy’s “very vindictive attitude” towards the developer. He accused Kennedy of bringing folks to the meeting, and insisted that she should recuse herself from voting on the matter. “I’m not sure you’re not their leader!” he shouted.
5- MOVE AFOOT TO HAVE HDC-MEMBER CENSURED FOR RUDENESS
The sheer rudeness of Wyckoff’s outburst and its loud, bullying tones launched at least one witness back to City Hall the next day to investigate how to have Wyckoff formally censured. The advice he got was to email complaints about Wyckoff’s behavior to the city’s elected officials as well as the city manager.
Contact list: Portsmouth Mayor Bob Lister <email@example.com> (431-6577), Assistant Mayor Jim Splaine <firstname.lastname@example.org> ( 1-727-466-3546), the whole City Council can be emailed at <email@example.com> or individually: Brad Lown <firstname.lastname@example.org> (436-1902), Stefany Shaheen <email@example.com> (501-0012), Esther Kennedy <firstname.lastname@example.org> (431-2944), Jack Thorsen <email@example.com> (601-4015), Zelita Morgan firstname.lastname@example.org (430-9283), Chris Dwyer <email@example.com> (436-5247), and Eric Spear <firstname.lastname@example.org> (433-3148). City Manager John Bohenko <email@example.com> (431-2000).
6- HDC CHAIR STRIKES CONCILIATORY TONE
For his part, HDC chair Joseph Almeida struck a conciliatory tone with the Portwalk developer. Instead of compensation or “publicly humiliating anyone,” Almeida said he simply wants “a better building.”
Expressing frustration, Almeida said he wants a chance to talk to the public because too many people are talking “about” the HDC instead of talking “to” the board. (Throughout the past year’s round of Portsmouth preservation and smart-growth battles, the public has repeatedly been warned that the HDC is a “quasi-judicial board” and that regular folks should not call them up or contact its members. Meanwhile, reporters have full access to the HDC, and this blogger– as a newspaper reporter– used to discuss issues with HDC-members and interview them on the phone and at home all the time. City Hall will not give out individual HDC-members’ email addresses, either, requiring that email be forwarded through a City Hall secretary instead).
Sorting through the confusion, the HDC’s Daniel Rawling finally opined that while many of the unauthorized changes made to the Portwalk project don’t have a “huge” visual impact, “the violation of procedure is extremely significant.”
Asked by Kennedy for help tackling the issue, City Attorney Bob Sullivan threaded through the minefield like a tightrope walker. Despite the “serious breach” of city process, no law that he knows of supports punishing the developer– or letting the developer benefit, Sullivan asserted. At the same time, the developer took out a $500,000 bond to do whatever the HDC decides, and agreed not to appeal the decision, Sullivan reported.
SO WHO GETS THE BURDEN OF DECIDING WHAT TO DO?
Sometimes in the past, the city has stopped projects when builders broke city rules, Sullivan told the board. Asked who makes the decision, he said it’s usually the city administration.
“Who decides?” Kennedy pressed.
“Probably me,” Sullivan said.
“Can we make design approvals contingent on penalties?” Rawling asked.
“Not unless the developer offers,” Sullivan replied.
“That why I was asking what the developer would offer.”
Meanwhile, what’s happening in historic Portsmouth is gaining a little international notoriety.
Elizabeth Rains is a veteran 30-year journalist living in Gibsons, British Columbia, on the other side of the continent. She and her neighbors are battling to protect their pastoral waterfront town, once rated the world’s “most livable” community, from a huge hotel complex residents fear would loom over their pristeen landscape of rippling mountains plunging into the sea and forever change their little fishing town’s character.
Rains tracked down Portsmouth Now! online after stumbling on a report about its recent successful effort to stop a massive addition from overwhelming the antique waterfront building at 173-5 Market Street in Portsmouth– in hopes of a project more respectful of the vintage grain warehouse and waterfront.
At a “Save Our Waterfront” rally last weekend, Rains showed the crowd a slide of the world-famous Venice, Italy, waterfront– tourists, gondolas and all– with a photo of the massive hotel project proposed for her town Photoshopped on top (see photo above). Rains showed the crowd a slide of what’s left of Portsmouth’s antique 19th century brick waterfront. She followed that with a shot of the new Martingale, which the HDC allowed to replace the second-oldest building on the waterfront, torn down a few years back amid controversy over its structural integrity and public safety.
The photo she showed the crowd was taken by this blogger last summer from a tiny boat bobbing on the Piscataqua River below. When the audience saw what Rains described as the “massive red brick buildings with patio umbrellas along the pier,” she said she heard a collective gasp.
“There was an outcry of ‘Oh no!’ and ‘Too bad!’” she noted via email.
Then Rains told the crowd that some folks in Portsmouth have started a spontaneous grassroots movement struggling for compatible development that fits in with and complements the city’s fragile historic fabric instead of replacing it. That gave the crowd heart, she reported, and encouraged it “to be more vigilant.”
8- CITY ATTORNEY: NO CEASE AND DESIST FOR PORTWALK
Some smart-growth advocates tracking this week’s City Hall drama speculate that next month’s HDC work session on the developer’s infractions could open the door for the City Council to impose stiff fines against Portwalk.
Will the city issue a cease and desist order?, Sullivan was asked later, as a crowd milled around a lobby named after beloved longtime former Portsmouth Mayor Eileen Foley.
The answer was no.
Asked by local contractor Rick Becksted, Jr. to explain why Becksted—if he ran a smaller project with half a dozen workers– would immediately get shut down by the city for far fewer violations, but the city lets Portwalk carry on unimpeded, Sullivan said it’s because the economic consequences of shutting down a big project with many more workers are far greater.
Hearing this, former Portsmouth Mayor and longtime local developer Peter Weeks, now a New Castle resident, nodded assent. (Weeks had listened intently to the exchange, and spent much of the HDC meeting seated next to Sullivan trading comments).
BOTTOM LINE: SOME SEE DOUBLE-STANDARD
All this leaves some folks here who have expended enormous amounts of unremunerated time, energy and angst trying to protect Portsmouth’s evanescent character worried that the city operates on a double standard.
“Portsmouth is going to be the poster child for what happens when the city retains the city manager for too long,” “pink house” abutter Arthur Clough wrily noted. “We’ve lost the respect of the development community.”