Riverplace lawyer: Board member biased

By RYAN J. HALLIDAY, Telegraph Staff

Friday, Mar. 30, 2007

HUDSON – The attorney for the developer looking to build a massive open-air shopping center on the Green Meadow Golf Club property says a planning board member should drop out of the review process because he’s biased against his client’s proposal.

In a letter sent last week to the chairman of the planning board, W/S Development Inc. attorney J. Bradford Westgate asked that William Cole, an alternate member of the board, recuse himself from participating in all board matters concerning the Riverplace project “because of a demonstrated conflict of interest.”

As evidence, Westgate cited several e-mails Cole has sent over the past year he claims “demonstrate Mr. Cole’s direct and long-standing advocacy against the project.”

In one such e-mail, Cole, a former selectman who lives within a few hundred yards of the site of the proposed project, conceded it would be “difficult – if not impossible” for him to judge the potential Riverplace development “in strictly objective terms.”

“We’re asking that Mr. Cole recuse himself because he has indicated an inability to impartially judge the project,” said Westgate.

W/S Development has entered an agreement to buy the Green Meadow Golf Club with an eye toward turning the 375-acre parcel overlooking the Merrimack River into the largest retail center in New England, featuring shops, restraints, a movie theater, an ice-skating rink, an outdooramphitheater, a hotel and conference center and senior housing.

When asked yesterday if he would consider sitting out of planning board hearings involving Riverplace, Cole responded he could not answer that question, arguing it is a “hypothetical” situation, because he has not been directly asked to recuse himself.

Westgate’s March 20 letter was addressed to planning board Chairman James Barnes, but also copied to Cole and the other planning board members and alternates, as well as Town Planner John Cashell and W/S officials and lawyers.

Barnes said only Cole could decide whether to recuse himself from the official review process, which he pointed out won’t likely begin for another several months.

“I don’t think we’re at that point yet,” said Barnes, adding it’s a “personal” decision. “It’s really up to him.”

While legally not an abutter to the site, Cole’s 2,671-square-foot Colonial-style home and 1.09-acre total property on Fairway Drive is about 400 yards away from Green Meadow Golf Course and valued at $344,500, according to the assessors department.

Cole said he had no idea whether the proposed Riverplace project would have any affect on the value of his 28-year-old house, and denied his home’s proximity to Green Meadow meant he could not objectively review the project.

While nobody can force him out of the process, Westgate warned if Cole participates in the review of the Riverplace project, an appeals court could eventually overturn any decision made by the planning board regarding the development.

Under state law, the planning board, like other local land-use committees, is a quasi-judicial body, meaning members are held to the same standards as jurors.

Members cannot sit for a hearing if they have a direct personal interest in the outcome that’s different from that of other citizens, or if they have already formed an opinion for or against a project before the hearing process begins.

Westgate pointed to a 1984 case where the state Supreme Court overturned the Town of Holderness’ approval of a project because a board member who had spoken in favor of the development prior to becoming a member, later participated in the review and application process.

“The (state) Supreme Court invalidated the decision because of his involvement,” said Westgate. “We believe it would be equally wrong for Mr. Cole to participate in these proceedings.”

Westgate admitted there’s “some uncertainty” as to whether this ruling would apply to alternate members like Cole who participate in meetings but only vote when one of the seven regular members is not in attendance.

“But we can’t be sure what influence a single participant could have on the rest of the board,” said Westgate, contending that a court could rule that the process had been tainted by Cole’s participation.

For his part, Cole said it’s impossible to be biased against the Riverplace project because definitive plans for the development have not yet been filed.

“I have never made a public statement against Riverplace for a very good reason, and that’s because technically the Riverplace project does not exist,” Cole said.

But in an e-mail to the Friends of Green Meadow dated May 7, 2006, several months before selectmen appointed him as an alternate member, Cole stated he likely could not view the Riverplace development objectively.

“When FOGM came together several months ago Ken Massey (a selectman and fellow alternate member of the Planning Board) and I intended it to be a non-advocacy means of passing along information to each of you – from a purely objective perspective,” Cole wrote.

“Although a noble sentiment, I find it increasingly difficult – if not impossible – to continue dealing with the potential development of the Green Meadow property in strictly objective terms.”

Cole further stated “government” won’t and can’t “protect our interests,” and indicated he would begin using the friends e-mail lists to continue spreading information about the Green Meadow project, “but from a subjective, as well as objective perspective.”

“Shame on us if we allow others to shape our reality and determine the future of our community,” he concluded.

Cole denied Westgate’s assertion he has been “organizing and fomenting opposition among citizens groups” against Riverplace.

“I don’t know what he’s talking about. Friends of Green Meadow is not an opposition group,” said Cole. “To pass along information to other citizens about projects that may have an impact on the community as a whole, I feel is an appropriate action.”

Town Counsel Stephen Buckley said he could not say whether he has met with Cole or other town officials to discuss this matter, citing attorney-client privilege.

Buckley, stressing he could not comment on this particular case, said he has read Westgate’s letter and “a number of the e-mails that touch on this subject.”

“I would agree with the general tenor of his letter in terms of how he referred to the law,” said Buckley.

“Members of a land-use committee are supposed to avoid the appearance of prejudice,” said Buckley, adding that did not mean he believes Cole is biased.

Ryan Halliday can be reached at 603-594-5860, or by e-mail at rhalliday@nashuatelegraph.com.