NH Supreme Court rules in favor of Portsmouth apartment project on North Mill Pond

PORTSMOUTH — The New Hampshire Supreme Court ruled Thursday in favor of developers who have been trying for years to build a major apartment project along the North Mill Pond off Bartlett Street.

The developers, Iron Horse Properties LLC, were initially granted site plan approval in April 2021 to build 152 apartments in three buildings at 105 Bartlett St.

The board also granted the developers Conditional Use Permits for work within the 100-foot wetland buffer and a second one for shared parking.

But a group of residents, led by Portsmouth attorney Duncan MacCallum, appealed the approvals to the city’s Zoning Board of Adjustment, which granted the appeals.

MacCallum has waged a series of legal battles during the past decade with developers of major projects in Portsmouth.

By granting the appeals, the ZBA’s decision effectively reversed the Planning Board approvals, according to the decision released by the New Hampshire Supreme Court Thursday morning.

“Iron Horse then appealed the ZBA’s decision to the Housing Appeals Board,” which reversed the “ZBA’s findings as to six of the petitioners’ claims and dismissed the remaining three claims,” according to the Supreme Court’s decision.

The group of residents, who describe themselves as “a group of abutters and other concerned citizens,” according to the Supreme Court’s decision, appealed the Housing Appeals Board decision to the state’s highest court.

Court upholds project approvals

The New Hampshire Supreme Court affirmed the Housing Appeals Board’s actions, meaning the approvals stand and the development can move forward.

The issues raised by the residents on appeal “can generally be consolidated under the following overarching questions: (1) whether Iron Horse’s proposed project met the six criteria for a wetland CUP … and (2) whether Iron Horse’s permit requests were barred under the doctrine of Fisher v. City of Dover, 120 N.H. 187 (1980).

Half-acre public park and greenway included in Residence at Islington Creek project

In addition to the 152 apartments, the development, which is called the Residence at Islington Creek, is proposed to include a half-acre public park along the North Mill Pond and donated rights to the city for about three-quarters of a mile of the long-planned North Mill Pond Trail and Greenway.

Ed Hayes, one of the developers, along with Doug Pinciaro, previously said “many, many Portsmouth residents have expressed their support of this project to us” … and “realize that this development will be a tremendous asset to the city.”

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The project has been years in the making and gone through multiple iterations before the city’s Planning Board approved it.

What the NH Supreme Court ruling says

In its 10-page decision, the state Supreme Court noted that the developer’s site plan application for the project explained that the “site has [a] history of railroad and industrial use” and that remaining “derelict railroad structures ... pose a safety hazard.”

“It further stated that nearly the entirety of the 100-foot tidal wetland buffer had been previously disturbed and was overgrown with invasive species, and that a portion of the site had fallen into disrepair . . . [and] has long been an attractive nuisance with a history of debris, homeless encampments, and crime,” the court said.

“Iron Horse proposed to provide stormwater treatment, which currently does not exist at the site, and to remove invasive species from the 100-foot wetland buffer and replant with a majority of native plants,” the court said. “Portions of the proposed buildings would encroach on the wetland buffer, but the application stated that the project would constitute an ‘overall improvement’ to the wetland buffer by moving buildings and parking further away from North Mill Pond than is the case in the site’s current condition.”

The N.H. Supreme Court addressed the contention by the residents that the developers didn’t meet in particular two of the criteria needed for a wetlands CUP.

The criteria for the CUP must show that there are no alternative locations outside the buffer that are “feasible and reasonable” for the project, according to the court’s reading of the CUP criteria.

And the final proposed location for the development will have the “least adverse impact” to the environment, when compared to other locations, the court said.

The court ruling states that, during the Planning Board meeting where the project was approved, representatives of the developers stated “it would have been economically infeasible for them to have erected their three buildings at a location outside the wetlands buffer.”

The developer’s last iteration of the project – which was ultimately approved – showed the least amount of impact to the 100-foot wetland buffer, the court stated.

Reached Thursday afternoon, MacCallum said “naturally I was unhappy with the decision.” But he credited the state’s highest court with taking a detailed and “thorough look” at the appeal, even though the decision went against him and the residents.

“The court understood the issues, it just came out on the other side of the issues than what I would have liked,” he added. “At this point I’m afraid I did the best I could, I fought the good fight, but the fight is over."

He acknowledged he could file a motion for reconsideration with the state Supreme Court.

But he stated that after “reading the court’s decision, you can tell if I filed a motion for reconsideration, there’s virtually no chance it would be granted.”

The petitioners who filed the appeal to the Supreme Court are James A. Beal, Mary Beth Brady, Mark Brighton, Lenore Weiss Bronson, Nancy Brown, William R. Castle, Lawrence J. Cataldo, Ramona Charland, Lucinda Clarke, Fintan Connell, Marjorie P. Crean, Ilara Donarum, Joseph R. Famularo, Jr., Philippe Favet, Charlotte Gindele, Julia Gindele, Linda Griebsch, Catherine L. Harris, Roy W. Helsel, John E. Howard, Nancy B. Howard, Elizabeth Jefferson, Cate Jones, Robert McElwain, Mary Lou McElwain, Edward Rice, April Weeks, Michael Wierbonics and Lili Wierbonics.

The story will be updated.

This article originally appeared on Portsmouth Herald: NH court rules in favor of Portsmouth apartments on North Mill Pond