CONWAY — Owners of a North Conway hotel have filed a third lawsuit in Carroll County Superior Court against Settlers Green which pertains to the construction of a Market Basket grocery store.
Bellevue Properties, owner of the North Conway Grand, has lost the two previous cases against town of Conway and Settlers Green in Carroll County Superior Court. Those two cases are now pending appeal in New Hampshire Supreme Court.
Town Planner Tom Irving, while stressing that he’s not an attorney, told the Sun Tuesday that he believes that the Market Basket’s construction “will not proceed until such time as the relevant legal impediments are resolved.”
The first case has to do with the town meeting vote in April of 2017 to discontinue McMillan Lane and to have it replaced with a private road called Barnes Road Extension. Market Basket’s parking lot would be where McMillan Lane is now. In the second case, Bellevue objected to the planning board’s approval of the grocery store project.
In 2018, Robert Barsamian of OVP Management, which owns and manages the Settlers retail complex, told the Sun pending all approvals, he hoped work could begin in that year’s construction season.
After the McMillan Lane case was heard in December of 2018, Barsamian, while at the courthouse, said the motive behind the suit might have been to delay the Market Basket project for reasons unclear to him.
“Whatever the long-term game plan is, who knows?” said Barsamian, who could not be reached for comment for this story.
Bellevue’s concerns boil down to public access to their property, traffic and parking. Bellevue is being represented by Roy Tilsley of Bernstein, Shur, Sawyer and Nelson of Manchester; the town by Peter Malia of Hastings Malia of Fryeburg, Maine; and Settlers by Derek Lick of Sulloway & Hollis of Concord.
Tilsley filed a new court action against Settlers on Nov. 1. It’s called a “petition for declaratory judgement and petition to quiet title.” Technically, the lawsuit is aimed at 13 Green Street Properties LLC and W.M.H. LLC, which are entities connected to Settlers.
Tilsley is asking the Superior Court to find that Bellevue has an easement in the form of a private right of access over the land where McMillan Lane is located. The lawsuit says Bellevue’s easement rights on the land cannot be repealed by the 2007 vote except by written consent from the plaintiffs (Bellevue).
“Such declaratory relief is particularly appropriate at this time, since defendants have not yet replaced McMillan Lane with parking spaces, lighting, landscaping, and associated infrastructure in accordance with their plans,” wrote Tilsley. “It’s more appropriate and sensible for the court to declare the plaintiff’s private easement rights in McMillan Lane before it is replaced with a parking lot, rather than doing so after the fact and requiring defendants to replace and restore the land upon which McMillan Lane is currently situated.”
In a phone interview, Tilsey clarified that Bellevue essentially has the right to use McMillan Lane even if it’s discontinued as a private way.
“We need to be able to use it for normal right of way purposes, which in this day and age involves getting cars through,” said Tilsley. “The fact we could walk through parking spaces, around cars and over islands and things like that wouldn’t be sufficient.”
Meanwhile, Bellevue has been granted an extension in its Supreme Court case pertaining to the Conway Planning Board approval.
Bellevue’s opening brief was originally due Dec. 27; however, on Dec. 19 Bellevue filed for a 15-day “automatic” extension. Attorneys Malia and Lick agreed.
Bellevue’s new deadline is Jan. 13, and the new deadline for the town of Conway and Settlers to respond is Feb. 12. Bellevue’s deadline to reply is March 3.
After the briefs are filed, the Supreme Court will decide whether oral arguments should be heard. Parties receive at least 30 days notice in order to prepare their arguments, and an opinion or order would come out anywhere from two to six months later.
“On average, an order is usually issued within 30 days of the court’s decision not to hear oral argument, but this can vary tremendously,” Carole Alfano, the New Hampshire Supreme Court’s public information officer, said in a Dec. 18 email.
Bellevue filed its first brief with the Supreme Court in reference to the McMillan Lane appeal on Dec. 9. Conway has until Jan. 23, 2020, to respond.
Tilsley said he expects that the Supreme Court cases could be decided around summertime. He can’t predict how long it will take for this latest Superior Court case to play out.
Bellevue had until Dec. 22 to serve Settlers, and Settlers has 30 days from service to respond.
“It’s just getting rolling,” said Tilsley of the third case, adding that like the other two cases the losing party in Superior could pursue an automatic appeal to the state Supreme Court.