Portsmouth Planning Board member could face removal: 'Inability to maintain impartiality'

PORTSMOUTH — City Attorney Susan Morrell is asking the City Council to schedule a public hearing to determine if Planning Board member James Hewitt should be removed from office.

In a memo to the City Council, Morrell reports the Planning Board chairman, members of the city’s planning and legal departments, and others, have repeatedly shared with her communications from Hewitt that “raise concerns” about his ability to “perform his duties as a Planning Board member.”

“Attempts to educate Mr. Hewitt as to the legal standards expected, and clarify expectations, began in December of 2021, continued through 2022, and were again addressed in November 2023,” Morrell told the council.

Despite her efforts, she said, “Hewitt has not brought his communications into compliance with the legal standards by which Planning Board members must conduct themselves.”

Hewitt was appointed to the Planning Board in December 2021 by then-Mayor Rick Becksted, who was serving his final weeks after being voted out of office. At that time Becksted said, "I’ve been working to make changes on land-use boards so residents won’t continue seeing the type of overdevelopment and obscene development they’ve seen over the last eight years."

Concerns raised about Hewitt

Morrell pointed specifically to emails Hewitt sent to members of the Technical Advisory Committee in January about a project at 581 Lafayette Road “that will eventually be brought before the Planning Board for consideration.”

“These emails to city staff represent his continued inability to maintain impartiality, to limit his review to the record before him and are in violation of the legal standards imposed upon land use board members by state statute to remain impartial, transparent, and to base their decisions upon the information presented to them at the public hearing on the project,” Morrell contends in her memo to the council.

Developer Mark McNabb is proposing to build more than 70 apartments at 581 Lafayette Road, which is the site of the Tour restaurant and former home to the Jerry Lewis Cinemas.

McNabb has pledged that 20% of those apartments will rent at work-force rates.

In the January email to Technical Advisory Committee members, Hewitt stated there are “29 parking spaces that do not meet Portsmouth’s parking space dimensional requirements” and adds that the spaces “cannot be used in the overall parking supply total.”

“I suggest TAC require the applicant to produce parking demand data for a similar size apartment complex that indicates 65 parking spaces for 72 apartments/116 bedrooms will be adequate,” he stated in the email.

Reached Friday afternoon, Hewitt said “Today’s news about the city’s intention to remove me from the Planning Board has left me profoundly disappointed.”

He declined to make any more comments.

How board members can be removed

Morrell stated RSA 673:13 “provides for the removal of land-use board members” after a public hearing “upon a written finding of inefficiency, neglect of duty, or malfeasance in office.”

Malfeasance in office is defined, according to Morrell, “as the general misuse of public office, or a wrongful conduct that affects, interrupts or interferes with the performance of official duties, or as the doing of an act which ought not to be done.”

Hewitt’s actions, she contends, “support the request for the council to schedule a public hearing to determine if (he) should be removed from the Planning Board.”

A sample motion included in Morrell’s memo suggests holding the public hearing at the Feb. 5 council meeting.

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Prior warning for Hewitt

Morrell also shared with the council a letter she sent to Hewitt on Nov. 9, 2023 about an email he sent to fellow board members concerning a 375 Banfield Road project.

Morrell tells Hewitt in the letter that his email “is problematic for four reasons.”

First, he was told at a hearing on the project “not to consider or discuss” an environmental lawsuit pending against the city related to the site.

“Your email demonstrates a clear bias toward the project, as you are advocating for consideration by the Planning Board of irrelevant facts not property before it,” she told Hewitt in the letter.

By circulating the email to the entire board, “you have potentially contaminated the votes of your fellow board members” and communicated to a quorum of the board, “in violation of the Right to Know law,” Morrell states.

Hewitt’s actions, she states in the letter, “exhibit an undeniable pattern of scorning legal advice and the counsel of the Planning Board Chair relative to issues of bias and the Right to Know law.”

The 375 Banfield Road project called for constructing an industrial warehouse and office building on site, according to plans filed with the city.

It was approved by the Planning Board, according to the city attorney.

In her November letter to Hewitt, Morrell tells him “this is not the first time you have chosen to ignore the legal advice provided by the City Attorney’s Office to you and the Planning Board.”

“This pattern of behavior has persisted throughout your term as a Planning Board member,” Morrell said.

She pointed to “numerous letters and emails sent to you by former City Attorney Robert Sullivan,” going back as far as December 2021.

“Concerns regarding your conduct as a board member, potential bias, and circumvention of the Right to Know law are also documented in email correspondence” from February 2022, March 2022, July 2022, September 2022 and October 2022,” Morrell wrote in the three-page letter.

She reported Hewitt was initially “apologetic for unintended missteps.”

But she warns him in the letter that “your continued conduct contrary to this advice is evidence of your refusal to comply with the laws governing the operations of the Planning Board.”

Morrell goes on to tell Hewitt in the November letter that “any recurrence of the illegal conduct discussed above or any similar conduct or other illegal actions on your part will lead to the initiation of your removal from the Planning Board.”

The letter is copied to Mayor Deaglan McEachern, Planning Board Chair Rick Chellman, City Manager Karen Conard and Deputy City Attorney Trevor McCourt.

This article originally appeared on Portsmouth Herald: Portsmouth Planning Board member Jim Hewitt could face removal