Judge Amy Ignatius

Judge Amy Ignatius said in a Feb. 14 order that if the court finds for Settlers Green in the latest lawsuit over building a Market Basket, "it may well order payment of attorneys' fees."

CONWAY — A Carroll County Superior Court judge has warned the owners of the North Conway Grand that she may award attorneys’ fees to Settlers Green if she finds against the hotel’s owners in their latest suit against Settlers over its plans to put in a Market Basket grocery store.

Derek Lick of Sulloway & Hollis of Concord, attorney for Settlers Green, has asked for the suit to be dismissed and for Settlers to be awarded fees, arguing that Bellevue Properties, owner of the North Conway Grand, has engaged in serial litigation in an attempt to stop the building of the store.

Attorney Roy Tilsley of Bernstein Shur of Manchester, who represents Bellevue, denied the claim, saying Bellevue has only sued Settlers twice (other suits were filed against the town of Conway) and that the current suit had to await the outcome of its suit against the town.

Douglas Drew Cohen of Middletown, R.I., with his brother, Jon, are the principals of Bellevue Properties.

In the latest case, 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 The lawsuit says Bellevue’s easement rights on the land cannot be repealed by the 2017 town vote to discontinue the road, except by written consent from the plaintiffs (Bellevue).

Bellevue Properties has lost two previous cases against the town of Conway and Settlers Green in Superior Court and currently has a pending appeal of those decisions before the New Hampshire Supreme Court. Those cases involve Bellevue’s challenge to the town’s discontinuance of McMillan Lane and the planning board’s approval of the grocery store.

The town is being represented by Peter Malia of Hastings Malia of Fryeburg, Maine.

Bellevue’s concerns boil down to public access to their property, traffic and parking.

A hearing in this latest case had been scheduled for Feb. 24 at 1 p.m. at Carroll County Superior Court in Ossipee. But  Tilsley and his colleague, Brett Allard, filed a motion on Feb. 18  to continue because they and Lick are all unavailable that day. They offered March 2 or March 6 as possible dates and if that didn’t work for the court, then they asked to have it on or after after March 13.

On Wednesday, Ignatius granted the request to postpone the hearing but the new date, apparently, had not been set as of Thursday afternoon.

On Feb. 14, Ignatius issued a brief order for a hearing to be held.

“Upon review of the motion to dismiss, the objection to the motion and the response to the objection, the court will schedule a hearing on the raised issues,” Ignatius wrote. “The court notes the defendant’s assertions regarding standing and res judicata (a matter already judged) are significant issues of jurisdiction and the plaintiff’s response thus far is less than clear.

“If the court finds for the defendant it may well order payment of attorneys’ fees, as requested by the defendant (Settlers). The clerk shall notify parties of the hearing date and time.”

Tilsley filed its latest suit, a new court action against Settlers, on Nov. 1. The suit is a “petition for declaratory judgment 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.

In December, 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.

Developer Robert Barsamian of OVP Management (Settlers) told the Sun in January that the project is ready to go as soon as the litigation is done. He stressed that the project would not cause traffic or safety problems and said he has never heard of a hotel that doesn’t want more traffic to flow by it.

“We will prevail,” said Barsmian in January. “It’s just a matter of when we will prevail.”

As for a roundabout proposed to be built on the North-South Road near the existing Settlers Drive access, Barsamian said he would do whatever offsite improvements are necessary to accommodate Market Basket. He just hopes Market Basket’s ownership doesn’t become impatient and walk away.

The Conway 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. As part of the plan, and per approval of a town meeting vote in April 2017, McMillan Lane — which is a town road — will be abandoned and replaced by an extension of Barnes Road.

In asking the court to affirm Bellevue’s right of access over McMillan Lane, Tilsley said, “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. 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 his Jan. 6 motion to dismiss the suit, Lick requested attorneys’ fees and submitted a rebuttal to Tilsley’s claims, noting that the hotel has sued Settlers several times before.

“This is the eighth suit brought by the plaintiff, Bellevue Properties Inc. against those associated with Settlers Green Development in North Conway resulting in Bellevue’s instigation of continuous, serial litigation against Settlers for more than 12 years,” wrote Lick.

“Despite its multiple attempts in this court, Bellevue has not prevailed in any of its claims seeking millions of dollars in damages or in any of its demands that the town of Conway deny Settlers’ properly supported plans for expansion. Nevertheless, Bellevue continues its vexatious litigation strategy with the filing of this suit.”

Tilsley disagrees. He wrote an objection to Lick’s motion to dismiss on Jan. 24.

Tisley said Bellevue property actually does abut McMillan Lane. Tilsley writes that their property is across Common Court from the southern boundary of McMillan Lane.

“Moreover, even if it does not, plaintiff still has standing to bring its claims because RSA 231:43(III) does not restrict a landowner’s private easement rights over a discontinued road only to abutters thereof, and defendants’ interpretation is too narrow and adds language that the legislature did not see fit to include,” said Tisley.

As for res judicata, Tisley says that the claim was “not ripe” when Bellevue filed its other suits. He also said, that in the prior action, the suit was about challenging Conway’s discontinuance of McMillan Lane.

“While defendants were ‘named’ in the prior suit, their actual capacity was not in the nature of a defendant against the plaintiff because the plaintiff was not adjudicating any claims against them,” said Tilsley.

“Rather, plaintiff was seeking judicial relief from the town’s decision to discontinue the road.”

Tilsley denied Bellevue was a serial litigator against Settlers. He said Bellevue only sued Settlers and its predecessors twice. The other times, Bellevue was suing the town and Settlers volunteered to intervene.

“Defendant’s sister entity has filed suit against the plaintiff once, defendants’ allegations that plaintiff is engaging in serial litigation is exaggerated,” said Tilsley, adding Settlers would not be entitled to attorneys’ fees.

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