December 16, 2018
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NH car dealer accuses city of falsifying evidence to justify taking his land

Rich Beauchesne | Portsmouth Herald
Rich Beauchesne | Portsmouth Herald
Attorney John Kuzinevich, representing car dealer James Boyle, and Charles Bauer, a liability insurance attorney for the city of Portsmouth, New Hampshire, leave the Rockingham Superior Court courtroom after this January 2017 hearing. The city is attempting to use eminent domain proceedings to claim 4.6 acres of property adjacent to the car dealership on the Route 1 bypass, and Boyle is fighting the effort in court.

PORTSMOUTH, New Hampshire — Attorneys for James Boyle are charging the city with falsifying evidence in its eminent domain case against the owner of the Toyota of Portsmouth dealership on the Route 1 Bypass.

The attorneys claim the city will “stop at nothing in its vendetta against Mr. Boyle, including violating all ethical constraints and committing a fraud on the court.”

“Its conduct must cease and be redressed,” attorneys John Kuzinevich and Joshua Wyatt, who represent Boyle, said in a motion filed Wednesday in Rockingham Superior Court.

The City Council voted in September 2016 to seize 4.6 acres of Boyle’s land next to his car dealership through eminent domain in order to protect a sewer line that runs through the property and improve stormwater management in the area. Before the councilors voted, they received a PowerPoint presentation from Deputy City Attorney Suzanne Woodland.

[Eminent domain looms over campground near Maine airport]

A copy of the presentation was included by the city in the court record compiled during a three-day trial in May when Boyle objected to the land taking, his attorneys claim in the motion filed Wednesday. But when the attorneys viewed the PowerPoint exhibit prepared by Woodland for the court, they discovered two of the slides had been changed, they stated in the motion.

“They discovered that the city altered the PowerPoint presentation in the exhibit to delete a slide and substitute a slide that was far more helpful … to the trial than the slide presented to the City Council and the public,” Boyle’s attorneys said in the motion.

In this case, Boyle’s attorneys said, the slide presented to the council was an aerial photograph showing the location of the sewer line. The one submitted in the court exhibit showed an engineer’s watershed plan, which “bolstered the city’s stormwater argument,” Boyle’s attorneys said. The city’s attorneys during the trial said the land was also needed to help manage stormwater runoff.

The attorneys also contend the city added another slide to the trial exhibit that was not in the presentation to the City Council and then deleted one that was, according to the motion.

“The effect of this conduct should be to taint all of the city’s evidence. If counsel was willing to alter a document what would the city do in preparing witnesses,” Boyle’s attorneys asked in the motion.

The attorneys asked the court to treat all of the city’s evidence with a “blanket negative inference” and award attorney’s fees to Boyle.

“It is time the city began treating Mr. Boyle in a fair and respectful manner, not as the object of a vendetta,” his attorneys stated. “Tough legal positions are acceptable but falsifying evidence in a quest to win at all costs is not. How can the public have any respect for civic leaders or the court process if this is allowed to continue?”

[State takes Wiscasset garage through eminent domain]

Reached Wednesday afternoon, Woodland issued a brief statement in response to the motion. “The city vehemently denies the outrageous allegations and a response will be filed with the court.” Woodland said.

Asked if slides in the PowerPoint presentation the city presented to the council were changed in the court exhibit, Woodland stated, “The statement is the statement.” She declined to address any other issues in the motion.

The dispute is the latest in a series of more than 14 years of legal battles between Toyota of Portsmouth and the city.

In a separate case, a Rockingham Superior Court jury in 2017 ordered the city to pay Boyle $3.57 million for lost profits from his Greenleaf Avenue dealership property due to the city sewer line that runs through the property the city has now taken.

Boyle on Wednesday said he believes the city will “do anything they want to win.”

“They’ve never won so they’ll do anything to win,” Boyle said about the alleged change to the PowerPoint presentation.

Boyle is trying to get the property back so he can build two more dealerships on that and other nearby land.

In light of the city’s alleged conduct, Boyle believes it should “drop the taking, pay the money they’ve been asked to pay and move on and do the right thing and let me develop this land.”

“I don’t think they have enough money to pay me what they owe me,” Boyle said Wednesday. “No matter what happens I’ll never be fully reimbursed for what they’ve taken from me.”

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