Published DateHannaford seeks to reverse planning board approval of new grocery store
By Daymond Steer
OSSIPEE — A Superior Court judge has allowed Hannaford Supermarket's lawsuit against the Conway Planning Board to proceed. The judge ruled against a motion to dismiss by the developer of a new grocery store, which might be a Market Basket.
Hannaford seeks to reverse the planning board's approval of a 80,500-square-foot retail grocery store located behind T.J. Maxx. The developer of the new store, Residences at Saco River LLC, was in court last month, arguing, as an intervener, that the case should be dismissed because its lawyers believe Hannaford had no legal standing, for various reasons.
In August, the planning board gave RSR an approval and decided that an additional access road running from the site to Settlers' Crossing is not required. Hannaford has maintained that its North Conway store will be hurt by the extra traffic the project will generate on Route 16 because the access road wasn't built.
In his Jan. 2 ruling, Superior Court Judge Steven Houran noted that the entrances of the two buildings are 550 feet apart, across the highway and separated by two traffic lights. But Houran found precedent from a New Hampshire Supreme Court case and determined the stores would be close enough together to grant Hannaford legal standing.
"The court asks itself how the Thomas petitioner, with an existing gas station located 1,000 feet from the respondent's proposed new gas station, could meet the proximity test, and Hannaford, with an existing grocery store located on an access way 550 feet from the proposed access way to RSR's proposed development, could not," wrote Houran. "The court concludes that given case law, and the access to both properties within 550 feet along Route 16 in light of the nature of Hannaford's alleged injury — increased traffic congestion along Route 16 restricting access to its store — the proximity prong favors Hannaford's standing."
The nature of the land-use change, turning an empty lot into a grocery store, and the traffic argument both favor Hannaford, wrote Houran.
At December's court hearing, RSR alleged Hannaford's case should be dismissed because no Hannaford representative spoke against the project when there was ample opportunity at the planning board meetings.
Hannaford's lawyer maintains a representative was sent to the planning board meeting but he didn't feel the need to speak because a majority of the planning board had heard and rejected the arguments that he would have made. Houran said non-participation weighed "heavily" against Hannaford.
But Houran disagreed that Hannaford's lack of participation would be "fatal" to its case.
"The other factors usually considered by courts in determining standing as an 'aggrieved' petitioner Nautilus 139 N.H. at 452 (proximity to the project site, the size and nature of the proposed project and the immediacy of the claimed injury) weigh to a greater or lesser extent in favor of standing," Houran wrote. "The courts concludes that, notwithstanding its lack of participation in the planning board meetings, Hannaford has standing to pursue its claim."
The judge requested the court clerk to ask lawyers from both sides about scheduling a final hearing as soon as possible.