Bohenko to seek legal opinion on McIntyre vote
By Jeff McMenemy
Posted Dec 26, 2018 at 12:05 PM
Updated Dec 26, 2018 at 12:05 PM
PORTSMOUTH -- City Manager John Bohenko said he will ask city lawyers for an opinion on whether he should recuse himself from any votes the Planning Board takes on the proposed redevelopment of the McIntyre federal building. “I haven’t really thought about it, but I’ll check in with the Legal Department,” Bohenko said Wednesday.
Bohenko is a board member and is also the city’s chief executive officer. The city is seeking to redevelop the 2.1-acre federal building property as part of a public/private partnership with its development partners Redgate/Kane.
As now proposed, the city would take ownership of the property from the General Services Administration, and then lease it to Redgate/Kane, which would redevelop it. Redgate/Kane officials have said they’re planning to invest about $60 million to clean up and redevelop the downtown site, which is close to the city’s popular waterfront.
Late last week, the development team issued a statement saying in part that the city would receive a total of $742,000 a year in ongoing financial benefits from the redevelopment, including $100,000 for the ground lease, an estimated $500,000 in real estate taxes and $105,000 in free rent for community space. A 75-year ground lease with the city has been proposed.
Bohenko stressed he will not only check in with the legal department “to see if they feel uncomfortable” with him voting on the project, but he will also ask them for a “written legal opinion” on the matter.
“That way everyone will be able to read it,” Bohenko said. He added that he “hasn’t been involved with any of the negotiations,” between the city and the Redgate/Kane team.
“I’ve never met with them to talk about the contract, Nancy has been handling that,” Bohenko said Wednesday, referencing Deputy City Manager Nancy Colbert Puff. Bohenko acknowledged he has been briefed and is aware of where the redevelopment process stands, and understands the city would benefit financially from it.
The Planning Board adopted its Rules and Procedures in 2000. Those procedures outline the Conflict of Interest issue. The rules and procedures state that “no member of a local land use board ... shall participate in deciding or shall sit upon the hearing of any question which the board is to decide in a judicial capacity if that member has a direct personal or pecuniary interest in the outcome which differs from the interest of other citizens."
The policy goes on to say that a board member should not sit on an issue “if that member would be disqualified for any cause to act as a juror upon the trial of the same matter in any action at law.”
“When uncertainty arises as to the application (of the above) to a board member in particular circumstances, the board shall, upon the request of that member or another member of the board, vote on the question of whether that member should be disqualified,” the Rules and Procedures policy states. “Any such request and vote shall be advisory and nonbinding, and may not be requested by persons other than board members, except as provided by local ordinance or by a procedural rule.”
City Attorney Robert Sullivan, the city’s chief legal official, said he has “not been involved in this issue.” “I wouldn’t speculate on it,” Sullivan said Wednesday when asked if Bohenko should recuse himself from any votes on the city and Redgate/Kane’s application.
The decision on whether a person should recuse him or herself from a vote, “generally speaking is made by the individual,” Sullivan said. “It depends on the question and the issue,” Sullivan added. The Planning Board must grant site plan approval on the proposed redevelopment for the project to move forward, even though the city owns the property.
The development team and city agreed that the project would go through binding votes of all the required city’s land-use boards. Planning Director Juliet Walker could not be immediately reached Wednesday for comment.
The city has been trying for years to gain control of the federal property from the General Services Administration, which owns it. During the past year, the city has worked to acquire the property for free through the Historic Monument Program, which NPS administers.
The redevelopment has been mired in controversy at times, first for its size and scope and then because the post office might not be able to stay at the site. Redgate/Kane initially proposed converting the federal building into office space, while building two 5½-story and two 3½-story mixed-use buildings on the property.
It has since eliminated the 5½-story building off Daniel Street after receiving pushback from the National Park Service on the proposal’s scale and density. The plan includes several largely hard-scaped open spaces or what Steve Perdue, vice president of Redgate, calls “public-realm spaces.”