MANCHESTER — A judge has sided with the developer behind a controversial plan to build a gas station, saying an alderman should have abstained from voting on the proposal after Facebook posts hinted that he opposed the project before deliberations ever began.
The project — proposed for 55 Edward J. Roy Drive, north of Wellington Road near Exit 8 off Interstate 93 in Ward 2 — includes a building to house a convenience store, doughnut shop, deli and fueling area with gas pumps. Members of the city’s planning board voted down the proposal in March 2018, 4-3. That vote came two weeks after the board deadlocked, 3-3, on the same request.
Manchester Economic Development Director Melanie Sanuth abstained during that initial vote, but was the deciding vote against it the second time around. Other “no” votes were Alderman-at-Large Joe Kelly Levasseur, former Ward 3 Alderman Pat Long, and board member Dan LeClerc. In favor of the project were Planning Board Chairman Michael Harrington and board members Michael O’Donoghue and Guy Guerra.
Lawyers representing the developer, Z1 Express in Bedford, had asked Levasseur and Ward 6 Alderman Elizabeth Moreau to disqualify themselves because they were followers of a Facebook page called “Wellington Hill Area Residents,” which formed late in 2017. Lawyers Roy Tilsley and Greg Michael of the firm Bernstein, Shur, Sawyer and Nelson maintained the sole purpose of the Facebook group was to oppose the project.
Alderman Moreau, an alternate member of the Planning Board, did not take part in the two votes on the project.
A lawsuit filed in Hillsborough County Superior Court North by the developer cites a Facebook post from Moreau on the Wellington Hill Area Residents page that states, “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.”
“Levasseur formed and gave his opinion to Moreau, who then gave it to the public, that he would vote against the project prior to board deliberations,” reads the complaint. “By forming and communicating his opinion that he would vote against the project prior to board deliberations, Levasseur participated in deliberations without being indifferent and was accordingly required to disqualify himself.”
Attorneys for the developer argued if Levasseur had disqualified himself prior to the initial 3-3 vote, the project would have passed that night.
In a ruling dated Oct. 29, Judge Amy Messer writes the evidence “strongly indicates” Levasseur made up his mind before deliberations took place.
“In other words, the deliberative process, a key part of the quasi-judicial function of the Planning Board, was undermined by Alderman Levasseur’s conduct,” writes Messer. “While there is nothing to indicate that Alderman Levasseur prejudged the case prior to hearing the evidence at the public hearings, the court finds his failure to enter and participate in deliberations with an open mind achieves the same result. His actions in this case not only threaten the integrity of the deliberative process, and thus the ultimate decision of the board, but also undermine the public trust in the overall function of the Planning Board.”
Messer also writes Levasseur’s membership in the Facebook group creates the appearance of impropriety.
“Accordingly, upon consideration of all of the foregoing, the court finds Alderman Levasseur improperly prejudged the case, and should have recused himself,” writes Messer.
In her ruling, Messer vacates the Planning Board decision and sends the matter back to the board for further deliberations.
“We are obviously pleased with the ruling,” said attorney Tilsley. “We felt strongly that Alderman Levasseur should have recused himself from voting on the proposal because he prejudiced himself before deliberations were held, and we’re happy to see the judge agreed with us.”
“The judge ruled I did not prejudge Z-1’s application,” said Levasseur. “She’s correct, but then stated I must wait until a future meeting to come to a conclusion? I am a big boy with lots of experience on that board. After sitting through five hours of a very thorough presentation; asking tons of questions and paying close attention to the answers, I concluded a 12-pump gas station is wrong for that location.”
He added: “This decision, under these set of facts, sets a bad precedent for board members. The city needs to appeal.”
Attorney Greg Muller of the Manchester city solicitor’s office declined to comment on the ruling Thursday.
Alderman Moreau posted a comment in the Wellington Hill Area Residents Facebook group Thursday responding to the ruling.
“With the update to the decision now available to the public, I would like to openly apologize for this drawn out unnecessary process,” wrote Moreau. “I made a freshman mistake and misspoke/typed and have learned a lot from this process. Best of luck moving forward with this process and I hope the right outcome is reached.”