City Attorney Bob Sullivan said after this week’s HDC 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.
Aside from an HDC work session set for next month, what to do about the violations 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 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 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 drama, 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, exhaustive exchange between the HDC and another developer, Mark McNabb, over his request for HDC permission to build a low 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.
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.”
HDC TURNS DOWN 40 BRIDGE STREET
In other HDC action that gave Portsmouth’s emerging grassroots sustainable 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 a few blocks away. 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 was born and 38 years before the John Paul Jones House. It 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.
“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 a 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.
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 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. (The city is 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. 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 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 said the city made him take out a demolition permit for far less. But the city apparently says it’s OK.
WYCKOFF LOBS EXPLOSIVE VERBAL ATTACK AT 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 a few hours into the meeting, when HDC-member John Wyckoff verbally lashed out at City Councilor/HDC-member Esther Kennedy after she pressed the developer, asking what compensation he would 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?” The HDC once made a homeowner on The Hill rebuild a chimney they took down, she pointed out.
In an hostile outburst that caused many in the audience to bristle, Wyckoff reacted with a tongue-lashing for Kennedy. “We shouldn’t even be attempting to do this!,” he exploded, adding that he was “really upset” by her “very vindictive attitude” against the developer. In bullying tones, he accusing her of bringing the smart growth to the meeting, and said she should recuse herself. “I’m not sure you’re not their leader!” he shouted. The rudeness of Wyckoff’s outburst launched several on-hand on efforts to have Wyckoff formally censured.
HDC CHAIR STRIKES CONCILIATORY TONE
For his part, HDC chair Joseph Almeida struck a conciliatory tone with the developer. Instead of compensation, Almeida said he simply wants “a better building.”
However, while many of the unauthorized changes made to the Portwalk project don’t have a “huge” visual impact, the HDC’s Daniel Rawling opined that “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.
WHO GETS THE BURDEN OF DECIDING WHAT TO DO?
In the past, the city has sometimes stopped projects when builders break 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, a veteran 30-year journalist living in Gibsons, British Columbia, is involved in a battle to protect her pastoral waterfront town from a huge hotel complex residents fear would loom over the landscape and forever change their little town’s character. Rains tracked down Portsmouth Now! online after reading a report about its successful effort to stop a massive addition from overwhelming the historic waterfront building at 173-5 Market Street, in hopes of a project more respectful of the historic building and waterfront.
At a “Save Our Waterfront” rally last weekend, Rains showed the crowd a slide of the world-famous Venice, Italy, waterfront– 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 the quaint, historic part of Portsmouth’s 19th century antique 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 a few years back amid controversy over its structural integrity.
The photo she showed was taken by this blogger last summer from a tiny boat bobbing below on the Piscataqua River. When the audience saw what Rains described as the “massive red brick buildings with patio umbrellas along the pier,” Rains said she heard a collective gasp.
“There was an outcry of ‘oh no,’ and ‘too bad,’ ” she noted via email.
Her report to the crowd that some in Portsmouth are struggling for development that will complement and fit in with the city’s fragile historic fabric helped motivate the crowd “to be more vigilant,” Rains added.
CITY ATTORNEY: NO CEASE AND DESIST FOR PORTWALK
Some smart growth advocates keeping track of this week’s City Hall drama speculate that next month’s HDC work session on the developer and contractor’s infractions could open the door for the City Council to impose fines on Portwalk.
Will the city issue a cease and desist order?, Sullivan was asked later as a crowd milled around a lobby named after longtime former Portsmouth Mayor Eileen Foley.
The answer was no.
Asked by local contractor Rick Becksted, Jr., to explain why he—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, Sullivan said it’s because the 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 seeming approval. (Weeks was listening intently to the exchange, and spent much of the HDC meeting seated next to Sullivan exchanging 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.”