Judge dismisses citizen lawsuit filed against Portsmouth over McIntyre settlement deal

PORTSMOUTH – Superior Court Judge Mark D. Attorri has dismissed a lawsuit filed by a group of residents against the city over its handling of the Thomas J. McIntyre federal building property redevelopment.

Attorri on Wednesday also denied a request by the residents to order a stay against the city seeking to block city officials from moving forward with a settlement agreement they reached with their development partners Redgate/Kane.

The group, which included some residents and business owners, maintained that the settlement agreement was “ill-advised and arbitrary” in that the lawsuit Redgate/Kane previously brought against the city had no merit, and that the settlement would cause the city to lose control of “the planning, development, and construction of the property."

The complaint: Portsmouth residents sue city over Redgate/Kane settlement

The judge ruled that the city acted within its rights when it decided to reach the settlement agreement with Redgate/Kane, which also operates as Sobow Square.

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“While the complaint sets forth numerous disagreements Plaintiffs have with the wisdom of the settlement, those disagreements do not establish that the city violated any law,” Attorri stated in his 4-page decision. “Even taking Plaintiffs’ allegations in the light most favorable to them, the court cannot reasonably infer that the city acted in an unlawful or arbitrary manner.”

“As the city correctly argues, displeasure or disagreement with policy decisions made by duly constituted governmental actors is not a cause of action recognized by the law. The remedy for such disagreements is at the ballot box, not in the courts,” he added.

The lawsuit filed by the residents also asked the court to declare the settlement agreement void “because it contemplates future negotiation about certain issues, such as the sharing of unknown third-party costs,” Attorri said.

But he ruled that the residents lacked legal standing to make that claim because they were not part of the settlement agreement.

The lawsuit was filed by Portsmouth residents and/or business owners Bill Downey, Kevin Zeng, Ken Kozick, Alice White, Daniel DiCesare, Robert Breneman, Margaret Porter, John H. Porter and Perry Silverstein.

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Reached Wednesday evening, Downey said he had not yet seen the decision.

City Attorney Robert Sullivan stated that “the city government operates as a representative democracy in which the voters of the city select a City Council to make their policy decisions for the good of the city.”

“In this case, the City Council performed that duty in a very serious and complex matter at which substantial amounts of money were at stake, and the net result may have a major positive effect on the downtown of the city for the rest of anyone’s natural life,” Sullivan said Wednesday evening.

The decision, Sullivan says, gives the city “a chance of securing the McIntyre property and developing that property along the lines of the community plan in the most efficient and economic way possible.”

The City Council previously voted to approve the settlement agreement with Redgate/Kane, which allows the two parties to move forward in their efforts to redevelop the 2.1-acre McIntyre property in downtown Portsmouth.

The community plan, which features a market shed design or pavilion, was developed by city consultants, Principle Group, following a series of public input meetings.

Sullivan recently compared the “community plan,” which he said could cost $60 million to build to “almost a Quincy Market,” referring to the Boston landmark.

The city has been trying for years to secure the 2.1-acre federal building property for free from the General Services Administration – which owns it - through the Historic Monument Program.

A previous City Council voted to approve Redgate/Kane’s redevelopment plan in 2019, which called for renovating the existing McIntyre building for office space and adding two new mixed-use residential buildings at the site.

The immediate past City Council rejected a draft ground lease with Redgate/Kane, leading the developers to file the lawsuit against the city that is now being terminated.

In exchange for the $2 million payment and other provisions in the settlement, Redgate/Kane has agreed to drop a potentially costly lawsuit it filed against the city.

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The $2 million payment to Redgate/Kane is “for prior project-related expenses that have been rendered unusable" after Portsmouth leaders decided to move forward with the community plan.

This article originally appeared on Portsmouth Herald: Lawsuit dismissed against Portsmouth NH over McIntyre Redgate/Kane deal