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Hannaford to take on new grocery store in court

Developer asking for case to be dismissed

CONWAY — The developer of a proposed grocery store, rumored to be Market Basket, will be in court next month seeking the dismissal of a lawsuit filed by a potential competitor, Hannaford grocery store, which contends the traffic created by the new store will hurt its business. 

On Aug. 23, the planning board voted 4-2 to grant conditional approval for the construction an 80,500-square-foot grocery store and a 48-seat cafe on 17.4 acres, located on the site of the old drive-in, behind T.J. Maxx.

Hannaford Bros. Co., through its attorney, David Rayment, from Cleveland, Waters, and Bass, of Concord, is asking Carroll County Superior Court to reverse the planning board's approval of the project. Hannaford argues that the applicants "refused" to create a connecting drive from the project to property owned by PLR Real Estate Developers (Settlers' Crossing), which would have minimized the traffic impact on Route 16.

But Hannaford's petition also states the proposed grocery store cannot have a connecting drive to Settlers' Crossing because Shaw's Supermarket, which according to Rayment, is a former owner of the site where the new grocery store is proposed, put a restrictive covenant on the land to prevent another grocery store from being built there if a connecting drive were built to Settlers' Crossing.

The applicant for the proposed grocery store, Residences at Saco River LLC, filed a motion to intervene, which was approved on Oct. 23. RSR is being represented by Derek Lick from Sulloway and Hollis P.L.L.C. in Concord.  RSR is a group headed by Settlers' Green Management's Robert Barsamian.

In its court filings, RSR acknowledged but didn't confirm the rumors that the proposed building would become a Market Basket.

RSR is asking a Carroll County Superior Court judge to dismiss Hannaford's case. A hearing on the motion to dismiss is scheduled for Dec. 11 at 1 p.m. According to RSR, among the reasons the petition should be dismissed is that Hannafords didn't participate in planning board discussions of the project. RSR says Hannaford can't claim to be surprised by the project because there had been several front page newspaper stories about it going before the planning board.

"To allow Hannaford to appeal the planning board's decision in this case without participating in the planning board process creates a dangerous precedent -- a precedent under which anyone who opposes or wants to delay a particular development is rewarded for complaining 'after the fact' without giving town boards the opportunities to hear such complaints when those boards could actually do something about them," states Lick's motion.

In response, Rayment, said in fact, Hannaford had been monitoring the planning process. Hannaford's Engineer and Project Manager J. Merrill Lord was sent to the meeting on Aug. 23. He felt the case for connecting drives had been explained by town planner Tom Irving and well argued for by planning board member Steven Hartmann and chairman Steven Porter who were outvoted 4-2.

"The law can not and does not require parties to needlessly prolong proceedings by making futile gestures," stated Rayment.

RSR also disputes Rayment's claim that Hannaford would be harmed by the additional traffic the new grocery store would create. Lick says the new store would be on the opposite side of Route 16 from the Hannaford and the drives are 550 feet apart.

"Thus, this is not a situation in which RSR's proposed development will be stacking up traffic or blocking traffic detrimental to an abutting property or to a property directly across the road," Lick stated in court papers.

But Rayment restated his claim that the extra traffic without a mitigating connecting drive would create difficulty for his client. According to Rayment, Route 16 is "severely congested with traffic." Further, the intent of the town ordinance is to require connecting drives so that cars can travel from one commercial development to another without getting back on Route 16.

"As a similarly-situated business on Route 16, Hannaford is benefited and burdened by the requirement of section 123-20 (G), that is, customers, employees, vendors and suppliers making deliveries who access Hannaford from Route 16 will be impeded and have their travel time increased by the planning board's decision not to enforce Section 123-20 (G) and require RSR to connect its development to the adjacent commercial development," stated Rayment. "Such increased congestion will have the effect of deterring customers to shop at Hannaford."

Traffic is likely to flow between the proposed grocery store and Settlers' Crossing because people could accomplish a number of errands by visiting both,  according to Rayment. Settlers' Crossing contains a gas station, a bank, a pharmacy, a restaurant, a coffee shop and two shopping centers.

"Given the nature and the type of proposed change to the RSR property, it may be reasonably inferred that Hannaford stands to be immediately, directly, and materially impacted by that decision," stated Rayment of the planning board's vote not to mandate the connecting drive. "This impact will be in the form of increased traffic and longer delays for customers, employees, vendors and suppliers making deliveries to Hannaford, and it is greater and more significant and permanent than the impact to members of the general public."

Rayment notes that the new grocery store site and Settlers' Crossing are divided by a narrow strip of land that hosts the sign for a campground and that the applicants relied on a "hyper technical" reading of the town ordinance that said the requirement of connecting drives only applies when commercial properties abut each other directly.

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