ignatius

The orders of Carroll County Superior Court Judge Amy Ignatius (top) in the North Conway Market Basket lawsuit are being appealed to the New Hampshire Supreme Court. (DAYMOND STEER PHOTO)

CONWAY — A judge's orders in the much-watched Market Basket case involving McMillan Lane are being appealed to the state Supreme Court.

In an order issued April 29, Carroll County Superior Court Judge Amy Ignatius said she would not reconsider her February order siding with Conway regarding a town vote to abandon McMillan Lane.

On Oct. 6, 2017, Bellevue Properties Inc. of Middleton, R.I., which owns the North Conway Grand Hotel, sued the town along with entities connected to Settlers Green, which wants to open a Market Basket supermarket on its land.

Douglas Drew Cohen and brother, Jon, principals of Bellevue, objected to the 834-250 town vote taken in 2017 to abandon McMillan Lane with the provision it could be abandoned only after Settlers builds a new road that would be open to the public.

That road, Barnes Road Extension, would be maintained by Settlers rather than the town. The road intersects with Common Court near the entrance to the hotel.

Creating Barnes Road Extension is key to building the Market Basket. The proposed supermarket’s parking lot would be where McMillan Lane is now.

The Bellevue lawsuit asked the court to reverse the vote to discontinue McMillan Lane or award damages or other relief to the North Conway Grand.

Bellevue was represented by Roy Tilsley of Bernstein Shur of Manchester; the town by Peter Malia of Hastings Malia of Fryeburg, Maine; and Settlers by Derek Lick of Sulloway & Hollis of Concord.

The case was heard by the judge last Dec. 6. On Feb. 27, Ignatius issued an order affirming the town’s vote. On March 11, Bellevue made a motion to reconsider. Lick and Malia responded March 20.

Ignatius, on April 29, denied the motion to reconsider.

On May 30, Tilsey and co-counsel Christina Ferrari filed an appeal with the New Hampshire Supreme Court.

They base their appeal on:

1. Whether the trial court erred as a matter of law by affirming the town's discontinuance of McMillan Lane based on the application of an incorrect legal standard and balancing test that erroneously considered the town's alleged interests in discontinuing McMillan Lane beyond the maintenance costs that it will save due to the discontinuance.

2. Whether the trial court erred in finding, as a matter of law and fact, that Bellevue's and the public's interest in the continuance of McMillan Lane do not outweigh the town's interests in discontinuing McMillan Lane.

3. Whether the trial court erred in finding, as matter of fact, that the potential harm to Bellevue is too uncertain to outweigh the town's interests in discontinuing McMillan Lane.

4. Whether the trail court erred in finding, as a matter of fact and law, that the Barnes Road Extension will serve the same purpose as McMillan Lane, where Bellevue's and the public's interest in the continuance of McMillan Lane stems from their unfettered legal right to travel on McMillan Lane as a public highway and where this dedicated public way, which Bellevue and the public have no private easement or right of access.

5. Whether the trial court erred by failing to recognize the legal distinction between a property owner accessing its property by a legally protected public way and a property owner accessing its property over a private way owned by an abutter.

6. Whether the trial court erred by admitting and relying at trial the town's exhibits C and D and evidence regarding the planning board's approval of Settlers' Site Plan and Boundary Line Adjustment, which includes the plan for replacement of McMillan Lane with the Barnes Road, subsequent to the April, 11, 2017, adoption of Article 27.

It is now up to the Supreme Court to accept the case or not.

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