PORTSMOUTH — City Attorney Robert Sullivan issued an opinion stating ex-officio members of the Planning Board – including City Manager John Bohenko – do not have to recuse themselves on the Planning Board’s vote on the proposed McIntyre Federal Building redevelopment plan.

The city is pushing the redevelopment as part of its public-private partnership with Redgate/Kane.

Sullivan issued the opinion Thursday after Bohenko asked for it after the Portsmouth Herald asked if the city manager had a conflict of interest on the matter. Bohenko serves on the Planning Board and is the city’s chief executive officer. Ray Pezzullo, Portsmouth’s assistant city engineer, is also an ex-officio board member.

Redgate/Kane has said the redevelopment of the 2.1-acre federal building site will cost $60 million. Developers have said the city would receive $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.

Sullivan stated it is his “opinion that the ex-officio members of the Planning Board … may participate in the decision making by the Planning Board, as long as they have not prejudged the determination to be made by the Planning Board.”

He noted city and Redgate/Kane officials agreed to “present the project to the land-use regulatory boards following the normal process, which would ordinarily apply to a private development.”

Typically, for city-owned property, land-use boards only offer advisory opinions.

The Planning Board adopted its Rules and Procedures in 2000. Those procedures outline the conflict of interest issue. The rules and procedures state “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 further states 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.”

Sullivan states, “The cause for disqualification is not relevant to the situation at hand insofar as neither ex-officio member has a direct, personal or pecuniary in any Planning Board determination to be made with regard to the project.”

In terms of the Planning Board juror standard, Sullivan in his four-page opinion acknowledges at site plan review board members sit “in a quasi-judicial capacity.” But, he states, “the courts have ruled that Planning Board members are not jurors and there are important distinctions between the two recognized by law.” Sullivan refers to the Dover v. Kimball case, which ruled “reasons for disqualification do not include knowledge of the facts involved gained in the performance of the member’s official duties.”

He also points to the Webster v. Town of Candia case in his opinion, which states “administrative officials who serve in an adjudicatory capacity are presumed to be of conscience and capable of reaching a just and fair result.” “Therefore," he said, "unless presented with actual evidence of bias on the part of the ex-officio members, they are presumed to be capable of reaching a fair result as the project proceeds through municipal land-use regulatory processes."

He maintains there is precedent for ex-officio members participating in the Planning Board’s review of projects “in which the city of Portsmouth was both the property owner and the developer of the project.” Those projects include the Peirce Island wastewater treatment plant, city library and Foundry Place Garage, Sullivan said.

The city is working to acquire the property for free through the Historic Monument Program, but the development team must preserve the McIntyre building.

Redgate/Kane’s proposal includes using the McIntyre for office space and building a 4½-story mixed-use building and two 3½-story mixed-use buildings. The plan includes several plazas, an indoor community gathering space, small kiosks, an art area, a possible market and potentially “a green wall,” developers have said.

The project has been a lightning rod for controversy due to massing Redgate/Kane has proposed for the site and the fact the post office may not remain on the property.

A group led by developer Michael Simchik has called for a much less dense development with a park behind the McIntyre building and a permanent home for the post office. View the plan at revisitmcintyre.com.