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Developer wants to bar board members from vote on Manchester gas station project

New Hampshire Union Leader

February 28. 2018 11:36PM

MANCHESTER — A lawyer representing the developer behind a controversial plan to build a gas station and car wash on the East Side has sent a letter to city officials requesting two Planning Board members be disqualified from participating in tonight’s meeting on the proposal, citing social media posts in a Facebook group opposed to the project.

One of the board members referenced in the letter, Alderman-at-Large Joseph Kelly Levasseur, said he believes he has “every right” to vote on the project tonight — and is flying back early from a family vacation in Miami to do so.

“I will be there, and I will vote on this,” said Levasseur. “I changed my flight and am coming home early, leaving my family in Miami, to see this through. That’s how important this is to me.”

The project — proposed for 55 Edward J. Roy Drive, north of Wellington Road near Exit 8 of Interstate 93 — includes a building to house a convenience store, doughnut shop, deli and fueling area. The site could be accessed across from the Carlton Place residential complex.

The project has generated a large amount of testimony, from opponents and attorneys representing the applicant, Z1 Express in Bedford.

In a letter sent Feb. 26 to Planning Board Chairman Michael Harrington, attorney Greg Michael of the firm Bernstein, Shur, Sawyer and Nelson in Manchester — representing Z1 Express — requests both Levasseur and his alternate on the board, Ward 6 Alderman Elizabeth Moreau, be disqualified from participating in deliberations on the project.

Michael writes RSA 673:14 imposes a “juror standard” on any Planning Board member participating in any question the board hears in a “quasi-judicial” capacity. As Michael points out, the juror standard — RSA 500:A:12 (II) — states a juror who is not indifferent should not be allowed to sit on a trial.

“It is well established that a Planning Board member who has prejudged an application does not meet the juror standard and cannot be allowed to participate in Planning Board deliberations,” Michael’s letter states.

Michael writes in his letter Levasseur and Moreau are members of a Facebook group called “Wellington Hill Area Residents,” which formed late in 2017 and “based on the entries on the Facebook page exists for the sole purpose of opposing the Z1 Express project.”

“Of particular concern is a recent post by board member Moreau in which she indicates that she has discussed this matter with board member Levasseur, and that both are in agreement that they will vote against the proposal,” writes Michael. “Such membersship in a group opposing the Z1 Express project, and the express announcement that these board members will vote against a proposal prior to the board conducting its deliberations is an indication that both board members Moreau and Levasseur have prejudged the project and are not capable of meeting the juror standard.”

Moreau’s post in the Facebook group, dated Feb. 20, reads, “Just an update for when the station goes to vote. Both myself, and Alderman Levasseur are in agreement that it does not fit that neighborhood and should not go through. As we are on the Planning Board as primary and alternate we will vote against this proposal.”

“I am not responsible for what Ms. Moreau stated what my opinion is about that project,” said Levasseur on Wednesday, during a phone interview from Florida. “Nothing on that page suggests that I had come to an opinion prior to hearing the testimony of the people for or against that project. I am not recusing myself from that matter. I have held an open mind on that project up to and including all testimony from all interested parties.”

Levasseur said he didn’t join the Facebook group because he is opposed to the project.

“As an alderman on the board, I represent the whole city,” said Levasseur. “I joined the page to follow conversations on the project. Following a page concerning that project was done for the sole interest of listening to the neighbors as both an alderman and a Planning Board member without interjecting an opinion on what my final vote would be.”

Z1 Express must obtain a conditional use permit to proceed, which requires satisfying a list of conditions, including that the project not materially endanger public health and safety, and not substantially devalue abutting property.

Tonight’s Planning Board meeting starts at 6 p.m. in the aldermanic chambers at City Hall.

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