OSSIPEE — Carroll County Superior Court Judge Amy Ignatius has dismissed a third lawsuit pertaining to the proposed building of a Market Basket grocery store at the Settlers Green shopping complex in North Conway.
However, she stopped short of awarding attorney's fees.
This suit, filed in November by the owners of the neighboring North Conway Grand Hotel, revolved around Settlers’ plans to build the store off McMillan Lane, a road to be discontinued by the town, on land it owns near the hotel. Bellevue Properties, owner of the hotel, were concerned about public access to their property, traffic and parking.
Litigation is preventing the store from being built, says Rob Barsamian, owner and president of Settlers. In April, he expressed optimism that construction can begin this summer and reiterated that optimism on Wednesday.
"I would put a shovel in the ground tomorrow... but we have one more hearing coming up and hopefully by the end of the summer we are going to be excited about bringing a Market Basket to the community," said Barsamian who added he wants to tell the hotel "it's time to start helping the community. We are all in this together."
Barsamian said Settlers is thrilled that Ignatius's order "didn't give them ( the hotel) any wiggle room."
Through its attorney, Roy Tilsley of Bernstein Shur of Manchester, Bellevue (whose principals are Jon and Douglas Cohen of Middletown, R.I.) claimed its easement rights could not be repealed by the 2017 town vote taken to discontinue the road without its written consent.
Derek Lick of Sulloway & Hollis of Concord, attorney for Settlers Green, argued that Bellevue lacked standing since it's not technically an abutter and that the issues Bellevue was raising has already been litigated. Lick asked for the suit to be dismissed and for Settlers to be awarded fees, arguing that Bellevue has engaged in serial litigation in an attempt to stop the building of the store.
Ignatius held a hearing on the lawsuit in April. She issued her 16-page order on Tuesday.
In it, she explains that the dispute is over the meaning of state statute RSA 231:43, which says roads can be discontinued by votes of the town.
It says that "no owner of land shall without owners' written consent be deprived of access over such highway, at such owner's own risk."
In her order, Ignatius says that Lick argued that the phrase "owner of land" should refer to direct abutters. However, Tilsley interpreted it to mean "every owner of land."
"The court finds, however, that such an interpretation would produce absurd results," said Ignatius, adding that could possibly confer rights to people from out of state. "Interpreting 'owner of land' to mean 'nearby owner of land' would impose geographical restrain that cannot be easily or reasonably defined."
The judge ruled that the "right of access" under the law referred to owners of land that directly touch the road to be discontinued. McMillan Lane is across Common Court from the North Conway Grand. Therefore, she dismissed the suit for "lack of standing."
Ignatius agreed with Lick's argument that the issues raised in this particular lawsuit should have been brought up in North Conway Grand's first suit filed in October of 2017. An appeal of that lawsuit is now pending in New Hampshire's Supreme Court.
"The records in both this case and the earlier action clearly establish that at the time the petitioner filed its earlier case, it knew or should have known that the town's vote to discontinue McMillan Lane would impact whatever rights it had under RSA 231:43, III," said Ignatius.
The judge added, "The claims raised by the petitioner in this action are barred by the doctrine of res judicata."
What that means is the issue has already been dealt with in court and cannot be pursued by the same parties.
As for attorney's fees, Ignatius said she won't order Bellevue to pay for Settlers' legal costs.
"The court acknowledges the respondents' (Settlers') frustration with the ongoing nature of the parties' litigation history, particularly given the fact the parties' last three cases over which this court has presided were filed by the petitioner (Bellevue)," said Ignatius.
But she didn't find the suits frivolous, saying Bellevue had "some basis" for their arguments.
Therefore, "the court rules that the respondents are not entitled to recover their costs and attorney's fees."
Tilsley reached by phone Wednesday said it would be possible to do a motion to reconsider or file an appeal. He had yet to review the order with his client.
The state Supreme Court will hear oral arguments that pertain to McMillan Lane on May 27.
Essentially, Bellevue claims it has a greater interest in keeping McMillan Lane open than the town does in closing it.
The case is Bellevue Properties Inc. v. Town of Conway and 13 Green Street Properties and WMH LLC, Settlers R2 (Settlers related entities).
The arguments will begin at 10 a.m. Each side will have 15 minutes to make its case. The town and Settlers will have 15 minutes in total. Because of the COVID-19 pandemic, the hearing will be conducted by video conferencing.
The public may watch remotely through the Supreme Court webcast at courts.state.nh.us.
Bellevue also sued the town over the planning board's decision to approve the grocery store. The town of Conway and Settlers won that lawsuit in New Hampshire Supreme Court in early April.
Barsamian also told the Sun that over the next two weeks more and more stores will be reopening after many closed to due COVID-19 pandemic counter measures.
"We are thrilled that we are getting back to work," he said.