PORTSMOUTH — City resident Mark Brighton filed an ethics complaint against Historic District Commission Chairman Joseph Almeida and Nick Cracknell, the city’s principal planner, claiming they engaged in “improper and unethical conduct” concerning the approval of the North End Portsmouth project.
Brighton, in a complaint filed with City Attorney Robert Sullivan, alleges the conduct of Almeida and Cracknell included “predetermining the outcome of a public hearing and colluding with the developer’s attorney,” which then turned a public hearing and ultimate approval by the HDC of the mixed-use development “into a sham.”
Almeida and Cracknell on Friday said they did not do anything unethical in handling North End Portsmouth’s application, which during its review was known as HarborCorp, and followed typical practices to handle land-use applications in the city, particularly those of the size and scope as this one. They also pointed to the project’s 18-month review, which included multiple work sessions and public hearings.
Brighton said Almeida, before the June 10, 2015, hearing, asked Cracknell to write a decision granting the conditional use permit (CUP) for the downtown project.
“The decision Mr. Cracknell drafted in advance of the June 10, 2015, public hearing amounted to a full-throated advocacy on HarborCorp’s behalf. The decision did not weigh the project’s pros and cons. Mr. Cracknell focused exclusively on the project’s supposed benefits. He exaggerated many of those benefits,” Brighton said in the complaint he filed Thursday afternoon. “Mr. Cracknell emailed a copy of this draft decision to HarborCorp’s attorney, Susan Duprey, approximately two hours before the … hearing.”
Brighton contends by asking Cracknell to draft a decision approving the CUP, Almeida “demonstrated or created the perception that he had made up his mind before the public hearing,” when HDC members should be impartial. Brighton noted Almeida and Cracknell distributed the draft decision to HDC members before the start of the public hearing, claiming they “in effect secretly lobbied the HDC to grant the CUP."
"Every instance of favoritism or secrecy, once revealed, has a ripple effect,” Brighton said in the complaint. “It leads the public to speculate that such ethical lapses are chronic, undermining faith in the Planning Department and the HDC.”
Almeida said city staff always prepare recommendations and draft language for a decision when applications are before any city land-use board.
North End Portsmouth includes a Whole Foods grocery store, parking garage with more than 500 spaces, conference center, boutique hotel, condos, open public space area near Russell Street and a rooftop garden on the second story above Whole Foods. Developer Chris Thompson agreed to pay $50,000 toward creating a new roundabout on Market Street, $25,000 to improve the railroad crossing at Maplewood Avenue, $50,000 for artwork for the North End Plaza, which Thompson will donate to the city, and $25,000 to preserve and repair the retaining wall at the Old North Cemetery.
Pointing to the project's size, complexity and 18 months of HDC hearings, Almeida said “it would have been an impossible motion for someone to make without having the context of the past year and a half,” which is why they prepared a draft decision in advance. “I’m 100 percent confident that this will result in nothing more than showing this was a typical responsible procedure for analyzing a project of this size,” he said.
He stressed he told HDC members before they started deliberating at the meeting that they could use the draft decision in a motion or not use it. He noted a copy of the draft decision was available and it would have been “irresponsible” not to craft language ahead of time.
“It was not a work session,” he said. “A decision was going to be made one way or the other that night, we just wanted to prepare.”
Asked if it were a mistake to provide Duprey with a copy of the draft decision, Almeida said, “I don’t know. That wasn’t anything that I participated in.”
Cracknell said he had just begun reviewing the complaint but noted it looks “very familiar to the set of questions raised last year in the rehearing request and the appeal to the Board of Adjustment” by project opponents. He stressed the project was “one of the largest and most complicated building projects (the HDC) reviewed in the last few years.”
“Passions are really high on this project and I think we all know that,” he said.
Project opponents appealed its approval to the state Supreme Court after their appeals were rejected at the city level and in Superior Court.
“I understand there are people disappointed with the project’s outcome,” Cracknell said.
He defended his decision to provide Duprey a copy of the draft decision, saying it was given to her with “the understanding it was a draft.” Cracknell pointed to concessions HarborCorp agreed to and said Duprey deserved the right to review them and make sure they were drafted correctly.
“It’s important for me in representing the administrative functions of the HDC to make sure that decision was well crafted,” he said.
Cracknell said the draft included a cover letter in which he stated “should the commission opt to deny the project, the findings listed … of this decision would need to be revised to indicate the proposed program elements do not meet the review criteria of CUP. ... Note that the information contained in this draft is based on the facts and figures as submitted and presented in the plans, elevations, renderings and other exhibits as well as documents received within the 18-month public review period."
“I don’t think it’s a mistake to communicate with anybody given it’s a draft decision,” Cracknell said Friday.
Cracknell said city planning staff work with developers and applicants every day as part of their job. “Whether you’re a great big real estate developer or homeowner fixing his steps, everyone needs to be treated with respect and (have) the courtesy of open communications,” he said.
City Attorney Robert Sullivan said the city charter requires he and Mayor Jack Blalock “conduct an independent analysis” of the complaint. If either determines the complaint has “substance” they must schedule a meeting of the Board of Ethics, Sullivan said Friday.
“Obviously, this is a matter of some priority. It needs to be done as expeditiously as possible,” Sullivan said, adding he and Blalock wouldn’t have time to study the complaint until “sometime next week.”
There’s no set timeline for setting a hearing if they believe one is needed, he said.
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