Portsmouth 5-story development prevails in court over residents challenging it

PORTSMOUTH — A Superior Court judge recently ruled against a group of 14 residents who sought to reverse the city’s 2021 approval of a major mixed-use project along the North Mill Pond.

The group — led by Portsmouth lawyer Duncan MacCallum — sought to overturn the city Planning Board’s approval of the five-story project, which calls for demolishing the existing 53 Green St. building and replacing it with a new five-story mixed-use development, featuring 48 market-rate residential units on the top four floors.

The Planning Board in 2021 voted to grant site plan approval for the project and to approve a Conditional Use Permit for work within the wetland buffer.

The city’s Historic District Commission also previously voted to grant a certificate of approval for the project.

The existing 1.66-acre parcel is bound by Green Street to the south, the AC Hotel to the west, North Mill Pond to the north and the railroad to the east, according to a project summary submitted to the city.

The project is being developed by Cathartes, and the property is owned by Doug Pinciaro, according to city records.

It was most recently appraised at $3.8 million, according to the city assessor’s department.

A series of appeals, and a lawsuit

The development has been on hold for the past two years while MacCallum and the 14 residents appealed its approvals and filed a lawsuit in Rockingham County Superior Court.

But Judge Daniel I. St. Hilaire recently affirmed an October 2022 decision by the city’s Zoning Board of Adjustment, which denied the group’s request to reverse the Planning Board’s previous approval of the major mixed-use project in Portsmouth’s rapidly developing North End.

MacCallum recently confirmed the group that filed suit against the city will not appeal the judge’s ruling.

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

Jeff Johnston, the principal of Cathartes, previously said the Green Street project “had a positive reception” during its review by multiple city land-use boards, “which included a unanimous vote by the Conservation Commission.”

“No one from the public spoke at HDC or Planning Board meetings the night of approval and no variances were required,” Johnston said.

Community benefits touted by developer

The numerous “community benefits” of the project include “opening up access along the North Mill Pond” while “connecting recent city improvements on Market Street to the new park behind the AC Hotel,” he added.

“There are also benefits to the North Mill Pond, including treating storm water runoff and installing new wildlife habitat,” he said previously.

The mixed-use building will feature 1,898 square feet of commercial space on the first floor, 97 parking spaces and 22,095 square feet of community space along the North Mill Pond.

More Portsmouth development news: What's next for McIntyre building? It won't be demolition.

That community space will be part of the larger North Mill Pond Trail and Greenway project, a public “multi-use path for use by bicycles and pedestrians extending from Bartlett Street to Market Street with a brief on-road portion along Maplewood Avenue,” the city website states. “Between Bartlett Street and Maplewood Avenue, the greenway will include scenic lookouts and seating areas along the path.”

Challengers lacked legal standing, judge says

St. Hilaire ruled 10 of the 14 residents who brought the lawsuit against the city did not have the legal standing to do so.

He made that decision because they do not live or own property next to the North Mill Pond.

“None of the 10 petitioners participated in the Planning Board hearings or articulated an immediate injury, thus they do not have standing,” he added in his 10-page decision.

The judge noted that the remaining four residents who brought the lawsuit, “argue they have standing as abutters and aggrieved parties because they own property next to North Mill Pond that will be directly affected by the development.”

The lawsuit claimed “the construction of the development will cause irreparable harm to the ecosystem of North Mill Pond,” adding that it will “kill plant, animal, and marine life in the pond.”

But attorneys for the city and the developers argue they “do not have standing as abutters or persons aggrieved because their property is too far away from the development, they have not shown an immediate injury to the ecosystem and they did not participate in the initial Planning Board hearing,” the judge said.

St. Hilaire points out in his decision that the residents are seeking to rescind the approval of the entire development.

“Petitioners here seem to have a general interest in in preventing the Planning Board from approving plans that would violate the town’s zoning ordinance, but fail to properly substantiate any particularized injury to them or their properties,” the judge ruled.

The residents also failed “to show how the Planning Board’s mitigating requirements for the development are inadequate to protect the wetlands,” St. Hilaire said.

The judge also noted that the four remaining residents did not participate in the Planning Board hearing where the project was approved, and weighing all those factors, ruled they also don’t have standing.

However, St. Hilaire did reject a request from the developer’s attorneys to order MacCallum to pay their attorney’s fees.

Attorneys for the developers maintained that they were entitled to the fees because the appeal was “meritless and frivolous,” the judge reported.

They also contended MacCallum “exploits the appellate process” and “the appeal is meritless” because the residents don’t have standing.

But St. Hilaire disagreed in his decision, and refused to order the residents to pay attorney’s fees.

“The petitioners brought a good faith appeal raising valid claims. Although the court found that petitioners do not have standing, petitioners made a good faith argument supporting their position that they were aggrieved parties,” the judge ruled.

This article originally appeared on Portsmouth Herald: Portsmouth 5-story North Mill Pond development's approval upheld