NH court rejects appeal of North End Portsmouth project

By Jeff McMenemy
Posted May 31, 2017 at 11:04 AM Updated May 31, 2017 at 4:43 PM

PORTSMOUTH — The New Hampshire Supreme Court rejected an appeal of the city’s approval of the North End Portsmouth mixed-use development filed by a group of area residents.

The state’s highest court, without even hearing oral arguments, upheld the Rockingham Superior Court’s earlier ruling that also rejected the group’s appeal.

“As the appealing parties, the plaintiffs have the burden of demonstrating reversible error,” the court states in its two-page ruling issued Tuesday afternoon. “Based upon our review of the Superior Court’s well-reasoned order, the plaintiffs’ challenges to it, the relevant law, and the record submitted on appeal, we conclude that the plaintiffs have not demonstrated reversible error.”

The Supreme Court’s decision comes almost two years after the city’s Historic District Commission approved a conditional use permit for the downtown project, along with a certificate of approval. The Planning Board in June 2015 also approved the site plan for the development, which was known as HarborCorp during its review by the city’s land-use boards.

North End Portsmouth, planned to be built on Deer Street between Maplewood Avenue and Russell Street, will include a parking garage with more than 500 spaces, conference center, boutique hotel, condos, the North End Plaza community space and a rooftop garden that will be open to the public. The development included a Whole Foods grocery store, but the chain pulled out, citing delays caused by the residents’ appeals against its approval.

Paul Young, spokesman for developer Chris Thompson, on Wednesday pointed to the loss of the Whole Foods. “That came as a direct result of the delays,” he said, adding delays also drove up the cost of the development “by at least $3 million.” Young also previously said the delays cost the city “hundreds of thousands of dollars” in property taxes.

The group has 10 days to ask the Supreme Court to reconsider its decision, but Young said he’s hopeful it won’t, calling it “a unanimous, overwhelming decision.” Barring a reconsideration by the court, developers plan to start final permitting with the city, he said.

“I think the game plan would be to finalize the last permitting review by city, get into construction by the spring of next year and then there’d be a couple of years of construction,” he said.

Thompson has not yet identified a tenant to take the place of Whole Foods, Young said. “Obviously, it’s hard to negotiate with new tenants when you’re tied up in court. I know we are talking to other grocery stores.”

North End Portsmouth will further transform the city’s North End along with the city’s new parking garage and four mixed-use developments planned by Deer Street Associates and Cathartes Private Development’s hotel on Vaughan Street.

Thompson, in a statement Wednesday, said, “We are pleased with the court’s ruling and to be at the end of a long and unnecessary period of delay caused by frivolous appeals, which have been costly not just to us, but also to the people of Portsmouth who have lost a Whole Foods Market and millions of dollars in economic activity. The good news is we can now move forward with North End Portsmouth, which is going to be an awesome hub of activity for the city’s evolving North End.”

Portsmouth resident and lawyer Duncan MacCallum filed the Supreme Court appeal after Superior Court Justice William Delker denied the group’s appeal of approvals by city land-use boards. The group contested the Zoning Board of Adjustment’s decision affirming the granting of a conditional-use permit for the project.

Joining MacCallum in filing the appeal were Betty Belcher of Greenland, Matthew and Ann Morton of Newington, Jane Man of Greenland, Gregory Sancoff of North Hampton, Nancy Steele-Elwell of Portsmouth, Belcher Market Realty, LLC of Greenland, Betty Morton Belcher Revocable Trust of Greenland, Jane Man Associates of Greenland and Seth Morton Associates of Greenland, according to court documents. State Sen. Martha Fuller Clark, D-Portsmouth, participated in the earlier appeals, but was not part of the Supreme Court appeal.

MacCallum could not be reached for comment Wednesday.

Chief Justice Linda Dallianis stated in her ruling that the court’s “review in zoning cases is limited.” “The ZBA’s factual findings are deemed … lawful and reasonable and will not be set aside by the Superior Court absent errors of law, unless the court is persuaded by a balance of probabilities on the evidence before it that the decision is unreasonable,” she said.