Appeal of HDC OK of 111 Maplewood Ave Megaproject Heads to ZBA

A volunteer lawyer will argue worried residents’ appeal of the HDC’s approval of the huge 111 Maplewood Ave development before the Zoning Board of Adjustment tonight (Tues, Jan 28) at 7 pm.  Duncan MacCallum, the Portsmouth attorney who donated countless hours to write the appeal, has a conflict, so Charles Meade, another local lawyer giving his time to the effort, will argue the appeal before the ZBA.

Supporters say the massive project will contribute to the vibrancy of an area all but destroyed by urban renewal. But critics say its mass, scale and in-your-face style (some have publicly likened it to a supersized mall building or pharmacy chain) are inappropriate for a gateway to what was until recently one of the most beautiful historic downtowns in America. 

Abutters and residents'  appeal of HDC approval of 111 Maplewood Ave project heads to the ZBA

Abutters and residents’ appeal of HDC approval of 111 Maplewood Ave project heads to the ZBA

THE APPEAL

Volunteer attorneys Duncan MacCallum and Charles Meade represent 15 abutters and residents concerned about the project’s effect on the North End and Portsmouth’s overall character. In his appeal, MacCallum argues that the HDC broke its own rules Aug. 7 by voting 4-3 to allow the massive project. Not only was the HDC influenced by understatements about the project’s mass and scale, it ignored the incompatibility of its mass, scale and style with historic houses across the street and made other procedural and substantive mistakes, he argues. The HDC excluded public input, took straw votes– and some even declared their minds made up– before getting public input; each member did not explain how the project related to HDC approval standards before voting; the HDC relied on misleading claims that no abutters objected and on a North End study the city never adopted– then didn’t respect its recommendation that new projects there respect “the scale and character” of historic buildings across the street and reflect “the scale of downtown Portsmouth.” After ignoring the scale and mass of the project, the HDC refused to rehear the case for the wrong reason, MacCallum writes in his appeal.

The other side of Maplewood Ave contains the last vestiges of the residential neighborhood erased by urban renewal

The other side of Maplewood Ave contains the last vestiges of the residential neighborhood erased by urban renewal

ABSURDLY SMALL VS OVERWHELMINGLY LARGE

Across the street is a cemetery where Prince Whipple, one of the few enslaved Africans who unsuccessfully petitioned for their freedom from the legislature in the 1700s but was freed by William Whipple, is buried, along with other notables

Across the street is a cemetery where Prince Whipple, one of the few enslaved Africans who unsuccessfully petitioned for their freedom from the legislature in the 1700s but was freed by William Whipple, is buried, along with other notables

Before voting to approve the project, HDC Vice Chair Tracy Kozak said it would “enhance the district,” and pointedly observed that “recreating two story wood-framed houses is not the answer here.” For MacCallum, this shows that the HDC failed to look for compromise between “an absurdly small building” and an overwhelmingly large megadevelopment.

THE PROTECTOR OF THE HISTORIC DISTRICT

The HDC is the board—one city official calls it the “firewall”– charged with protecting the Historic District’s character, and the North End, despite the fiasco of urban renewal, is in the Historic District. Section 10.637.70 (p.88) of the city’s zoning ordinances says the HDC must make its decisions based on: the special character of surrounding properties, including their design, height, scale, mass and width; the size, height and width of new construction; the compatibility of a project’s design, height and scale with surrounding properties; and whether it encourages innovative use of materials and technologies.

http://planportsmouth.com/application/ZoningOrd_amended_130915.pdf

ARGUING FOR THE DEVELOPER

Plaque about Portsmouth, one of a Dozen Distinctive Destinations, National Trust for Historic Preservation, hangs in City Hall

Plaque about Portsmouth, one of a Dozen Distinctive Destinations, National Trust for Historic Preservation, hangs in City Hall

Arguing for the developer, Maplewood & Vaughan Holding Co, LLC, former City Attorney Peter Loughlin argues the opposite. Loughlin maintains that the HDC did not err, but correctly found that the project met all its review standards. Loughlin argues that the HDC was entitled to express opinions about the project before hearing from the public, and spent many hours and a lot of energy on the project and pored through many documents. In voting to approve the development, Loughlin also notes that HDC Vice Chair Kozak specifically addressed all the board’s legally-required review standards one by one. As for the rehearing issue, the state Supreme Court says rehearings should only be granted for compelling reasons, Loughlin argues in his lengthy rebuttal. HDC decisions are subjective, and just because some people (however “well intended or passionate they may be”) disagree is not enough to overturn them, Loughlin asserts. 

THE GROUND RULES

By law, the ZBA is charged with hearing all the evidence again. For a look at the ZBA ground rules for Tuesday’s appeal hearing, see 3:05-3:38 in this YouTube video: 

http://www.youtube.com/watch?v=GirNIIB3SNM&list=UUXUNd8goAjKxc_aXfvXIKdw&feature=c4-overview

 

 

 

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