CONWAY — The North Conway Grand is appealing Conway's planning board's decision to approve a Market Basket Grocery to the New Hampshire Supreme Court after losing in Carroll Superior Court.
Bellevue Properties, owner of the North Conway Grand, sued the town last Dec. 7 and asked the court to review a series of approvals of Settlers Green’s plans for lot line adjustments and 74,491 square feet of retail space and associated infrastructure (the Market Basket store).
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.
Bellevue’s objections basically had to do with traffic impact and parking.
Superior Court Judge Amy Ignatius issued a 13-page order April 23 and mostly agreed with the planning board, but she did ask the board to revisit the issue of parking.
The planning board May 23 reaffirmed that the parking standard used was adequate when it gave conditional site-plan approval last Nov. 8 to the store proposed to be built between Barnes Road and Common Court. The planning board approved Settlers' waiver request to not mandate another 48 spaces.
Settlers sought 801 spaces were needed for the development of Settlers Streetside, Market Basket and Merlinos. but Tilsley said 849 were needed.
Tilsley moved for reconsideration of the April 23 order and to set aside the board's May 23 decision. Ignatius denied both.
In her order issued July 16, Ignatius said for a motion for reconsideration to be successful, an argument must be made that the court "overlooked or misapprehended" issues of law or fact.
Ignatius said Bellevue argued that, under planning board regulations, the record should have reflected why the board chose to use the alternative parking standard. She reiterated her findings from April that the board could use the alternative standard and was not required to document its reasoning.
"Because Section 110-43 B of the planning regulations was wholly discretionary, and because the board's decision was plainly an exercise of its discretion, the court held that the board's decision was nether unlawful nor unreasonable," wrote Ignatius. "Accordingly, the court neither overlooked nor misapprehended any point of law or of fact."
Bellevue also argued that the court "misapprehended the board's ability to evaluate traffic flow in Settlers' Green based on what was submitted in the site plan review process.
"However, Bellevue raised the same or similar arguments in its trial memorandum, and the court fully addressed them in its April 23, 2019, order," wrote Ignatius in her July 16 order.
"Accordingly, the court neither overlooked nor misapprehended any point of law or of fact for the reasons stated in its April 23, 2019 order. For the foregoing reasons, Bellevue's motion for reconsideration is DENIED."
On Aug. 15, Tilsley and attorney Brett Allard, also of Bernstein, Shur, Sawyer & Nelson, filed an appeal with the New Hampshire Supreme Court.
The appeal is a mandatory appeal meaning it's automatically accepted.
Five questions the appeal asked were:
• Did the trial court err when it held that the planning board could reasonably have found that the traffic within Settlers Green will circulate freely and safely even though the applicant's traffic impact evidence did not address internal traffic flow?
• Did the trial court err when it held that the planning Board could reasonably have found that the traffic within Settlers Green will circulate freely and safely even though the applicants' traffic impact evidence utilized a 10 percent reduction in new trip generation attributable to the proposed supermarket based on shared trips with existing retail center?
(Ignatius said that engineering and planning firm Gorill Palmer estimated that between 20-30 percent of projected trips to Settlers would involve shoppers visiting both the market and retail shops so it was reasonable for the board to use a "conservative" estimate of 10 percent of trips would be shared.)
• Did the trial court err when it allowed the planning board to waive and/or substitute its way around the condition precedent to final approval imposed by the trial court?
(Ignatius had ruled the board had the authority to grant waivers under some conditions. In this case, she said, waiving the parking requirements removed the need for Settlers to prove there would be adequate parking.)
• Did the trial court err when it held that the planning board's decision permitting substitution of the 1982 Urban Land Institute Parking Standard in the place of the default standards under the Town's Site Plan Review Regulations was not unlawful nor unreasonable even though the applicants presented no evidence in support of its substitution request and the planning board did not find that the substitution would be better accomplish the intent of the Site Plan Review Regulations as required by the same?
• Did the trial court err when it held that the planning board's decision granting final approval was not unlawful nor unreasonable even though the board ignored the common scheme of development of Settlers Green?
The New Hampshire Judicial Branch's website lays out the process for mandatory appeals.
"In a mandatory appeal, the parties generally are given the opportunity to submit a transcript of the lower court proceedings and to file written briefs," states the website, courts.state.nh.us/supreme/.
"After the briefs have been filed, the Supreme Court decides whether the case should be scheduled for oral argument or decided on the briefs alone," it continues. "The court then issues a final decision, which may be a brief order, an order with some explanation, or a full written opinion."