11-14-18 makret basket

Robert Barsamian (left) and attorney Derek Lick of Sulloway and Hollis of Concord are shown at a Conway Planning Board meeting in 2018, during which Barsamian’s Market Basket store project was unanimously conditionally approved. (TOM EASTMAN PHOTO)

CONCORD — The state Supreme Court Thursday affirmed Conway Planning Board’s approval of plans for a Market Basket in North Conway. Now, the town and Settlers Green have to each win a court case before a new grocery store can be built.

The planning board in November of 2018 unanimously gave conditional site-plan approval to the owners of Settlers Green for a 69,845-square-foot Market Basket store between Barnes Road and Common Court.

In December of 2018, the owners of the North Conway Grand (Bellevue Properties Inc.)  asked Carroll County Superior Court Judge Amy Ignatius to reverse that  decision. Bellevue’s principals are brothers Jon E. Cohen and Douglas Cohen.The North Conway Grand sits off Common Court adjacent to Settlers Green.

Bellevue’s concerns boiled 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.

Developer Robert Barsamian of OVP Management (Settlers) told the Sun Thursday he was glad the order came down but his thoughts and prayers are really focused on the coronavirus pandemic. Barsamian said Settlers is doing everything it can to support the community and its employees during this time. He called on the hotel to stop what he said is the “needless litigation” and work with Settlers “to make Conway more vibrant than ever.”

He said the Market Basket will bring 200 well-paying jobs with great benefits to the community.

“They are not hurting just us,” said Basamian. “They are hurting the valley, the community, the neighborhood and the people. ... I’m a big boy I can handle anything they throw at us. It’s not about that. We just move on to the next project. They are hurting the community.”

Barsamian said that people in Conway and the surrounding area would love to have the Market Basket and Settlers is doing everything it can to bring Market  Basket to town.

Ignatius issued an order April 23, 2019, and mostly agreed with the planning board, but asked the board to revisit the issue of parking. Last May, the board affirmed the parking standard it had used previously. Settlers said 801 spaces were needed for the development of

Settlers Streetside, Market Basket and Merlino’s Steakhouse, but Tilsley said 849 were needed.

Ignatius denied Bellevue’s motion for reconsideration in July, and Tilsley appealed to the Supreme Court in August.

Before issuing its order Thursday, the high court decided that oral arguments were unnecessary.

“We conclude that the trial court’s interpretation of its prior remand order was not erroneous” in allowing the planning board to waive the requirement for 849 parking spaces the Supreme Court stated in its order.

Next, the Supreme Court addressed Bellevue’s concerns about traffic. Bellevue argued that Ignatius “erred” by finding after construction the traffic in the development would move safely.

The Supreme Court said the planning board had a study before it that said the projected traffic would have “no discernible impact on the operation or the queue lengths of the hotel access or the adjacent intersections.”

The Supreme Court also said the planning board had letters from the police and fire chiefs saying they didn’t have issues with the design. The town’s site plan review regulations address traffic flow, the high court said.

“The plaintiff further contends that the board could not have relied upon the evidence before it to infer that the traffic would move safely within the development because: (1) the proposed market was large and constituted a use ‘foreign’ to the existing retail center; and (2) the developer did not ‘analyze’ future traffic patterns within the development,” states the Supreme Court’s order. “On the contrary, we conclude that a reasonable person could have reached the same decision as did the trial court based on the same evidence.”

Bellevue has another case pending before the Supreme Court in which it challenges a 2017 town meeting vote to abandon McMillan Lane, a town road, and replace it with an extension of Barnes Road. If the grocery store is to be built, the area where McMillan Lane is now would be needed for the parking lot.

Bellevue has a third case, filed in November, pending in Carroll County Superior Court asking for a judgment that Bellevue’s easement rights on the land cannot be repealed by the 2017 town vote to discontinue the road, except by written consent from the Bellevue.

In his Jan. 6 motion to dismiss the suit, Lick requested attorneys’ fees and submitted a rebuttal to Tilsley claims, noting that the hotel has sued Settlers several times before.

Steve Porter, selectmen’s representative to the planning board and a longtime former chair of the planning board, said the ruling comes as good news.

“It would be nice to get the Market Basket situation resolved so at least they could get started on construction before the dead of next winter,” said Porter.

Tilsley on Thursday afternoon said he hasn’t had a chance to discuss the court’s decision with his client. He said they could request rehearing but that’s not been decided. “Any time you lose it’s disappointing,” said Tilsley, confirming the other two cases are still pending and they “feel good” about those cases.

Reporter Tom Eastman contributed to this story.

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