Kent Street neighbors fight Portsmouth's approval to demolish 1900-era home

PORTSMOUTH — Neighbors of a Kent Street couple who received approval from a city board to demolish a historic duplex and replace it with a new single-family home are seeking a rehearing on the issue.

Attorney Austin Mikolaities contends in a request for rehearing filed with the city's Zoning Board of Adjustment that its decision to grant variances needed for the demolition of the 1900-era Kent Street home was “unlawful or unreasonable, based upon a misapplication or misunderstanding of fact or law.”

He states the neighbors he’s representing “commissioned a peer review of the applicant’s plans by a professional engineer who has confirmed that … the project requires at least four additional variances.”

The board voted in September to grant Cynthia Austin Smith and Peter Smith the variances needed to demolish the historic home they own at 9 Kent St., and replace it with a new home.

The board approved the two variances despite opposition from neighbors and others who expressed concern about another historic home in Portsmouth being demolished.

Mikolaities pointed out the board in May rejected the couple’s first proposal, which required seven variances.

“In May the board voted unanimously against the applicant’s project for many reasons, one of which was their inability to establish hardship,” he said in the request for a rehearing. “Nothing has changed. The applicant moved the house over by 12 feet, but it is essentially the same four-story full height house, patio/spa with masonry walls.”

He pointed out too that “the proposed underground garage allows for the expansive patio/spa area.”

“A house without an underground garage is not a hardship,” Mikolaities said. “The majority of the neighborhood has driveways next to their houses on similar sized lots, and it is possible to develop the applicant’s property in a similar way.”

In the rehearing request, Mikolaities also argues that the Smiths “should have been required to provide sufficient engineering detail to facilitate a proper evaluation of the project’s affect on the neighborhood, and the public interest.”

He contends that the proposed new home will have more than 3,500 square feet of living space, “resulting in a massive increase in building footprint and impervious surface in a dense residential neighborhood,” which abuts a public park, “and will have acknowledged storm water impacts on the South Mill Pond.”

He also maintained that the granting of the variances “clearly threatens the health, safety and welfare of the public” because of the impact of the storm water runoff and “other environmental impacts.”

“The proposal requires significant impacts upon the public right of way, the public park and the South Mill Pond, to say nothing of its direct visual and aesthetic impact on the abutters,” he said. “The board erred in finding that the granting of the variances would not be contrary to the public interest or contrary to the spirit of the ordinance.”

Mikolaities is representing David and Sandra Mikolaities of 19 Kent St., William and Katherine Arakelian of 18 Kent St., and Barbara Adams of 75 Kent St.

Attorney Timothy Phoenix, who represents the Smiths, filed an objection to the rehearing request that was posted to the city’s website on Friday.

Phoenix maintained that the rehearing request “erroneously rehashes the same points previously considered by the ZBA (Zoning Board of Adjustment), including claims that additional relief is required.”

The request for rehearing, Phoenix said, “utterly fails to demonstrate the ZBA committed any error in its analysis and fails to provide new evidence which was unavailable to the petitioners at the time of the initial hearing.”

“These repetitive claims do not demonstrate the ZBA erred in granting relief for lot size and lot size/dwelling unit,” Phoenix said. “Additionally, such claims are misplaced because the Building Department will review a complete permit plan set before any building permit is issued.”

What are Portsmouth's demolition rules?

The board is slated to address the request for a rehearing at its Tuesday meeting, which is scheduled to begin at 7 p.m. in City Council chambers.

In advance of the meeting, Deputy City Attorney Trevor McCourt drafted and posted a “Demolition Review” memo.

The memo, McCourt states, provides an “overview of how the city reviews and processes demolition of structures.”

“Based upon commentary by the public and by members of the board, it seems an overview of how demolitions are handled under city ordinances could be helpful,” McCourt said.

Proposed demolitions of structures “can be fairly broken into two categories: those within the Historic District and those outside the Historic District,” according to McCourt.

The existing duplex at 9 Kent St. is outside the city's Historic District.

If someone proposed to demolish a structure in the Historic District, “that application is subject to rigorous review as against those standards defined by ordinance,” McCourt said.

“The Historic District Commission has authority to deny demolition applications under certain circumstances,” he said.

As an example, McCourt noted that a Rockingham County Superior Court judge recently upheld a decision of the HDC denying a request to raze the so-called Times Building.

City has limited powers outside Historic District

But for properties outside the Historic District, “the city’s ability to apply criteria, other than safety ... is limited,” McCourt said.

“The current regulatory process only seeks to provide a public forum for the discussion of demolitions,” he said.

The city also has a Demolition Review Committee, which can also provide a public forum for demolitions requests, McCourt said.

“It is important to note the DRC has no authority to prevent the demolition of any structure,” he said in the memo.

Neighbor Barbara Adams told the board in September the Smiths bought the property “knowing full well what it was and its restrictions.”

The property is not located in the city’s historic district, she acknowledged, but “we are an historic area of the city, with houses built starting in 1900.”

Approving the project, Adams contended, would set “a precedent for the future in Portsmouth,” she said.

It would lead others to “buy small lots and develop them by maximizing …the size and height of their proposal, while disregarding the effect on the existing neighborhood.”

“We have already seen it in places all over Portsmouth,” she said. “It should not happen again on Kent Street.”

Nine Kent St. was most recently assessed at $688,100, according to the city’s assessor’s office.

The Smiths purchased the property, which is located in a neighborhood of well-kept homes that overlooks tennis and pickleball courts, along with playing fields, for $985,000 in November 2021, according to the assessor’s office.

The Smiths recently received a variance from the board to allow 5,000 square feet of lot area where 7,500 square feet is required and a second one to permit 5,000 square feet of lot area per dwelling unit where 7,500 square feet is required.

'We are making things much better'

During the second hearing, Phoenix, said the new house — which will sit at the end of Kent Street — will be “fully compliant” with “all zoning requirements” except for the lot size.

He noted the Kent Street neighborhood includes many homes that don’t meet the 7,500-square-foot lot size requirement.

“We think that the streetscape demonstrates that this house does fit in,” he said during the recent board meeting.

“The lot size cannot comply, it can never comply,” he added.

“On an overall basis, we’re making things much better.”

Board member David Rheaume made the successful motion to approve the variances.

But he also pointed to the fact that the project called for another “demolition of an existing structure.”

"Personally I’m disheartened by the trend, as many of the speakers have talked about tonight,” he said during the September meeting. “Across our city, not just in this neighborhood, we are seeing the fact that the value of the land beneath our buildings is in many cases of a greater intrinsic value …. than the structures that are on it.”

“I think it’s concerning but it is something that this board has no true purview over,” Rheaume added.

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This article originally appeared on Portsmouth Herald: Neighbors fight demolition of Portsmouth NH home on Kent Street