Published DateBy Daymond Steer
OSSIPEE — A Carroll County Superior Court judge has denied a petition by Hannaford grocery stores, which sought to have the judge reverse the Conway Planning Board's decision to approve the construction of another grocery store.
Hannaford seeks to reverse the planning board's decision to give Residences at Saco River LLC approval for an 80,500-square-foot retail grocery store behind T.J. Maxx in Conway. The planning board approval was given in August. The new grocery store is rumored to be a Market Basket. Judge Steven Houran conducted the final hearing on the case at the end of last March. The lawsuit dates back to September.
The planning board decided that a connecting driveway running from the site to Settlers' Crossing was unnecessary but Hannaford maintained that it will be hurt by the extra traffic the project will generate on Route 16 because the access road wasn't built.
RSR's attorney Derek Lick, of Sulloway & Hollis, said the connecting driveway would have only been required under town ordinances if the two properties were actually adjoining. However, the two properties in this case are separated by a narrow strip of land that hosts a sign for a campground.
Houran, in his May 6 ruling, agreed with Lick on the issue. Houran wrote it's clear that RSR's site and Settlers' Crossing shopping center "are not contiguous." Houran also looked at a number of dictionaries and concluded that the most common usage of the word "adjoining" means "touching, contiguous, as in joined." However, in some instances adjoining can also mean "close or near to."
"Therefore, the court holds that the planning board did not err in deciding that a connecting driveway between the applicant's property and Settlers' Crossing was not required under the regulation," wrote Houran.
Hannaford's attorney David Rayment, of Cleveland, Waters, and Bass, also argued the proposed plan violates a section of the site plan that regulates the angle at which driveways must cross buffers. Rayment said that the planning board neglected to waive this requirement.
But Lick told Houran the nature of the plan makes it obvious that the planning board's intent was to waive the requirement even if the board failed to do so in a formal motion.
Houran, who examined the planning board's minutes, sided with Lick again.
"The court believes that, irrespective of any technical error naming (ordinance) Section 123-29(A)(3) and not 123-29(A)(4) in the application, the planning board discussion nevertheless reflects that the members understood the nature of the applicant's waiver request," wrote Houran who concluded that the planning board "did not err in either respect alleged by the petitioner, and Hannaford's petition is therefore denied."
The May 6 ruling opens about a month-long window for Hannaford to appeal to the New Hampshire Supreme Court. The "target date" for the case to close is June 7.
Hannaford spokesman Eric Blom said Hannaford had no announcement to make about Houran's ruling.
"Right now, we're still reviewing the decision," said Blom.
Hannaford's lawsuit against the Town of Conway et al generated some criticism from Carroll County residents who wrote letters to the editor about the case.
"Shame on you Hannaford for trying to block Market Basket from coming to North Conway," wrote Frank Evitts of Madison. "You are denying our right to choose which grocery store we want to shop at. Is it because they are cheaper, item for item than you are?"
West Ossipee resident Sonia Voegtlin wrote to Hannaford and suggested that the lawsuit was "a poor PR move." Voegtlin advised Hannaford to, among other things, drop the suit and lower prices. Voegtlin shared her letter and Hannaford's response with The Conway Daily Sun.
Blom would not discuss the letter because Hannaford doesn't comment on communications with specific customers.
A Hannaford consumer relations specialist replied to Voegtlin in a letter. According to Hannaford's letter to Voegtlin, traffic congestion on Route 16 was the company's motivation for asking the planning board to reconsider its decision to approve the new store.
Last month, the Union Leader reported that Hannaford Brothers is "giving up" a court case against the town of Bedford's zoning board of adjustment, which had given a variance to a developer seeking to build a Market Basket.