OSSIPEE – Conway in a recent lawsuit brought by owners of the North Conway Grand Hotel, a Carroll County Superior Court judge has affirmed a town vote to give up McMillan Lane.
North Conway Grand Hotel’s ownership had sued, claiming the hotel would be harmed by lack of access if the road were abandoned.
Creating a new road called Barnes Road Extension is key to building a proposed new Market Basket supermarket. That plan, being developed by Settlers Green, was recently up for site plan review by the Conway Planning Board. The supermarket’s parking lot would be where McMillan Lane is now.
A condition of planning board approval is the court’s deciding the lawsuit in the town’s favor.
Bellevue Properties Inc. of Middleton, R.I., (the North Conway Grand) filed suit Oct. 6, 2017, against the town, Green Street Properties LLC of Newton, Mass., W.M.H. LLC and Settlers R2 Inc., the latter entities being connected to Settlers.
Douglas Drew Cohen and brother, Jon, are the principals of Bellevue Properties.
They objected to the 834-250 town meeting vote that was taken in 2017 to abandon McMillan Lane, with the provision that the road could be abandoned only after Settlers built a new road that would be open to the public.
Barnes Road Extension would be maintained by Settlers rather than the town. The road intersects with Common Court near the entrance to the hotel.
The lawsuit asked the court to reverse the vote to discontinue McMillan Lane or award damages or other relief to the North Conway Grand.
The case was heard during a Dec. 6, 2018, bench trial.
On Feb. 27, Judge Amy Ignatius issued an order affirming the town’s vote.
“The town will benefit from the absolute discontinuance of McMillan Lane because it will no longer bear the burden of maintaining the road,” said Ignatius.
“Furthermore, the continued development of Settlers Green will serve to promote Conway’s local economy. Although Barnes Road Extension will remain private, the discontinuance of McMillan Lane is conditioned upon Barnes Road Extension being dedicated to public use. ... Accordingly, the court holds that the conditional discontinuance of McMillan Lane was a valid exercise of the town’s statutory authority to discontinue public highways.”
Bellevue also wants Ignatius to reverse the planning board’s decision to approve boundary line adjustments and reverse the conditional approval of the supermarket due to concerns about traffic and parking. That case will be heard Thursday morning.
Taking the stand Dec. 6, Douglas Cohen testified about the town vote to discontinue McMillan Lane.
His basic argument was that if McMillan Lane is closed, two of the three access roads for the Grand would be controlled by Barsamian, and that while a third (North-South Road) is public, it is not an obvious route to the hotel for tourists unfamiliar with the area.
Cohen said he and Settlers have clashed over Settlers Green Drive in terms of signage, lighting, billing, road and snow plowing. He said such issues could have been avoided if the access roads were public.
Ignatius acknowledged that the easement that the hotel has to allow guests to travel over Settlers Drive and the private section of Common Court has been a bone of contention for both parties. The easement requires that North Conway Grand pay for maintenance.
“Settlers alleged that for a period of seven years, Bellevue failed to pay its proportional share of the expenses for maintaining Settlers Green Drive and the private section of Common Court,” wrote Ignatius.
“Bellevue alleged that Settlers threatened to to stop plowing its private roads during the winter and stopped illuminating the pylon signs directing guests to the hotel. Nevertheless, it is clear from the evidence presently before this court that Settlers has maintained its private roads since Bellevue purchased the hotel.”
The judge said her job was to determine whether Bellevue’s interests in keeping McMillan Lane were stronger than the town’s interest in closing it.
According to Ignatius, there was no evidence that Settlers would go out of business, had failed to plow or needed to be prompted to plow.
“In contrast, Conway has a number of realistic, concrete interests in the discontinuance of McMillan Lane,” said Ignatius.
Ignatius wrote that Conway Public Works Director Paul DegliAngeli estimated the closure would save the town $7,821 in annual maintenance costs. The closure also would allow Settlers to better use its land to create more retail space that would help the local economy as well as residential space that is “currently in demand,” she wrote.
North Conway Grand’s attorney, Roy Tilsley Jr., told the Sun on Monday that Bellevue has filed a motion of reconsideration with the Superior Court. He said that Bellevue was not taking a pro or anti-Market Basket stance.
“This case is about the ability of people to access the hotel from Route 16 and Route 302,” said Tilsley.