By Daymond Steer
CONWAY — Hannaford Brothers Co. is taking its case against the town of Conway Planning Board all the way to the New Hampshire Supreme Court after being denied twice by the Carroll County Superior Court.
Hannaford, the grocery store company, sought 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.
Carroll County Superior Court 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 insists that it will be hurt by the extra traffic the project will generate on Route 16 because the connecting driveway wasn't built.
Houran agreed with RSR's attorney Derek Lick, of Sulloway & Hollis, who 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.
Hannaford also argued the planning board never granted a waiver for a town requirement about the angle at which driveways can cross buffers. Houran ruled that planning board members did not make a "reversible error" and had understood they were granting a waiver to the requirement even if they had failed to name the specific section of the ordinance that they were waiving.
In early June, Houran refused Hannaford's motion to reconsider the case.
"Upon review of the motion for reconsideration, the objection, the court's order of May 6, 2013, and the pleadings and record leading to that order, the court determined that its May 6, 2013 order neither overlooked nor misapprehended any point of law or of fact," wrote Houran in his June 6 ruling. "Accordingly, the motion for reconsideration is denied."
Hannaford filed its appeal to the New Hampshire Supreme Court on July 8 — the last day it could do so. Apparently, the arguments that Hannaford will bring to the Supreme Court are similar to those already tried on Houran.
"Did the trial court err in finding that the Residences at Saco River...did not need to provide a connecting drive to the Settlers' Crossing property to the south where: (a) such finding violated the spirit and intent of the Conway Site Plan regulations which require connecting driveways to adjacent properties in order to keep traffic off of Route 16/302; (b) the only easement required to provide such a connecting driveway was over a very narrow strip of land owned by a campground which had previously provided the Applicant or the Applicant's affiliate with such an easement for a different proposed project; (c) there was no evidence that the campground has been asked and refused to provide such an easement; (d) the two potentially connecting properties are separated by the narrow strip and were defacto owned and controlled by the same entity; and (e) the only reason the applicant refused to make the connection was because it might cause the applicant to violate a supermarket restriction placed on the Settlers' Crossing property in favor of Shaw's Supermarket?"
Shaw's had owned part of the property where Settlers' Crossing is now. Shaw's created a restriction that prohibits a grocery store from being made on the land behind T.J. Maxx if a connecting drive is made.
Hannaford is also asking the Supreme Court to revisit the driveway angle issue. Hannaford says the planning board granted a waiver under section 123-29(A)(3) and but failed to grant one under 123-29(A)(4).
The Supreme Court will determine if they need to hear oral arguments on the case of if it can be decided on written briefs.