By Buck Fuller
Source: Greenhouse Gas Institute
From the Free Dictionary: The dog that caught the car—
Someone who has done or achieved something difficult but doesn’t know what to do next.
- I worry that they are like the dog that catches a car. It took so long to pass the legislation that now it’s done, they do not know what to do next.
- My whole life for the last five years has been focused on getting this PhD. Now that I have it, I feel like the dog that caught the car.
Has the City Council Caught the Car?
This coming Monday night, the City Council holds a special meeting to consider the letter from Holland & Knight LLP regarding the McIntyre property. In essence, the June 28, 2023, letter from Holland & Knight is written to Thaddeus Jankowski, a former deputy City Manager, regarding the Thomas J. McIntyre Federal Office Building (McIntyre) held by the U.S. General Services Administration (GSA).
In it, the firm’s lawyers opine that the city can still acquire the McIntyre Building and associated land based on legislation in the 2004 Appropriations Act. U.S. Senator Judd Gregg drafted the legislation that requires the GSA to “convey, without consideration, the Thomas J. McIntyre Federal Office Building to the City of Portsmouth, New Hampshire for economic purposes.”
Critically, this would give Portsmouth a clean title to the McIntyre and its associated land.
Conditions No Longer Apply
There were three conditions attached to the 2004 Appropriations Act that were part of the conveyance. The most onerous one was that the then current tenants had to be moved to another Federal building in the area before the conveyance could be accomplished.
For years, GSA Regional Administrator, Robert Zarnetske refused to build and relocate the tenants because he felt he had not been given adequate funds to accomplish the construction of new offices and relocate the tenants. He stated in 2014 that the 2004 Appropriations Act was not a mandate for him to vacate McIntyre.
But by late 2020, all Federal agencies in McIntyre had relocated. Ironically, many of them were situated in offices owned by Michael Kane, the Portsmouth developer who is in the midst of litigation with the City relating to McIntyre.
That means that the one condition that had prevented the GSA from allowing the conveyance of the McIntyre property to the City no longer exists. The McIntyre Building currently stands vacant.
City Currently Maintains the McIntyre Building
The Holland & Knight letter does not highlight the fact that the City has and currently maintains the McIntyre Building. It pays to keep the building in reasonable condition as part of its current arrangement with the GSA. The GSA allows the City to use the on-site parking in return. While not proof per se of the City’s ownership of McIntyre, the fact that Portsmouth taxpayers have shouldered this responsibility and have benefitted from the use of the parking suggest that the GSA’s role is minimized, and the City is responsible for preserving its interests in the building and property.
Long History of Dispute
The reader may go back through the history of the property over the past 20 years and see strong evidence of disputed ownership of the McIntyre Building and associated property. One 2014 comment, made by then-City Councilor Brad Lown, is interesting. Councilor Lown was and is a practicing attorney and now serves as a judge on the New Hampshire Circuit Court.
At the February 18, 2014 City Council Work Session, Attorney and then-Councilor Lown stated, “We feel mistreated and betrayed by the government.” In the minutes of that meeting, it states that “Councilor Lown had read the (2004) statute and does not read it in the same way Mr. Zarnetske interprets it.” Numerous other City Councilors expressed similar opinions over the years.
From the April 1, 2014 Seacoast Online, U.S. Sentor Jeanne Shaheen said she has spoken “directly with the White House” in an effort to get the General Services Administration to turn the McIntyre Federal Building over to the city of Portsmouth.
“I disagree with the GSA’s interpretation of the situation and was disappointed by their response to the city,” Shaheen, D-N.H., said in a statement Tuesday. “I’ve raised concerns directly with the White House and plan to explore all available options to make sure the McIntyre Building is transferred to the city of Portsmouth.”
Her statement comes after a contentious meeting Monday night (March 31, 2014) between the City Council and Robert Zarnetske, regional administrator of the U.S. General Services Administration.
Now, Mayor McEachern’s City Council Has Another Golden Opportunity
Given this past history, the upcoming Special City Council Meeting on Monday, July 17 is momentous. The City, if it follows the Holland & Knight opinion, has the chance to obtain a clear title to McIntyre. This has been missing for years and is invaluable. Of course, that means it will need to carry out its obligations as owner in a responsible fashion. But from the 2014 quotes above, the City Council must follow through, conduct its due diligence and conclude the conveyance as laid out in the 2004 Federal statute.
Snatching Defeat from the Jaws of Victory
This City Council has snatched defeat from the jaws of victory before. At the beginning of 2022, Mayor McEachern and the City Council voted to work with SoBow LLP and Michael Kane after SoBow and Kane were fired just months before by the previous Council led by Mayor Becksted. Mayor McEachern delegated all negotiating responsibility to the City Manager, Karen Conard. This launched an exercise in committing the City to secret negotiations between the City and SoBow LLP, a one-sided Settlement Agreement strongly favoring SoBow, and large payments to SoBow. This sadly ended with the current litigation between the City and SoBow LLP.
Hire the Outside Counsel Necessary Now
The City Council needs wise outside counsel. Once the City Council decides to pursue the Holland & Knight opinion with its necessary due diligence, it needs to retain an outside attorney independent of City management to guide its next steps.
As objectives, these steps must include the conclusion of the conveyance and the adequate memorializing of this action; a preliminary design phase to incorporate the Community Plan or other design plans together with appropriate engineering and cost estimate work; the development of a request for proposals incorporating these efforts; and a review of submitted proposals.
The process is as important as the deliverables.
Consider Senator Gregg’s Vision Together with Expanded Underground Parking
Former U.S. Senator Gregg had an important vision that motivated his drafting the enabling legislation as part of the 2004 Appropriations Act. In the Seacoast Online article of July 14, 2023, Gregg said the McIntyre building should be razed because it was and remains an eyesore. He called for, and continues to call for “a lot of open space” along with a couple of smaller buildings in the Federalist style that would be “consistent with the downtown Portsmouth area.” Gregg calls for on-site parking.
We would add that one of those buildings needs to house a post office.
The City Council should consider demolishing the McIntyre Building and establishing open space with expanded underground parking in response to former Senator Gregg’s vision. Boston’s Post Office Square Garage, which provides open-space greenery at street level and expansive underground parking might be one option for the City to consider.
Here are two pictures of Post Office Square Garage at ground level. The first is taken in autumn.
The second is of the entrance to the underground garage.
You Caught the Car. Here’s the Action to Take
The City Council would be well-advised to follow the Holland & Knight conclusions. Once the McIntyre title is secure, the City Council must appoint a board of citizens to conduct the subsequent works since it is likely to extend beyond the upcoming election season. While there could be a minority of City Councilors appointed, there should also be a majority of respected members of the community put on the committee. Given the unfortunate experience recently seen with the direct participation of City staff, the committee can hear staff opinions but must operate independently.
