CONCORD — The New Hampshire Supreme Court heard the case of North Conway Grand Hotel vs. Town of Conway and Settlers Green on Wednesday, but a decision is not expected for two to six months.
The hearing was requested by North Conway Grand, which hopes the court will reverse a Carroll County Superior Court decision that helps pave the way for a Market Basket grocery store in North Conway.
The town was a party to North Conway Grand’s suit because of a 2017 town vote to discontinue McMillan Lane, which would become Market Basket’s parking lot.
A New Hampshire Supreme Court case flow chart shows that once oral arguments are held, it will take between two and six months for an opinion to be issued.
The case is called Bellevue Properties Inc. v. Town of Conway and 13 Green Street Properties and WMH LLC, Settlers R2 (Settlers-related entities).
The arguments began at 10 a.m. Wednesday. Each side (the town and Settlers constituted one side) was given 15 minutes to make its case, and Bellevue was allowed a rebuttal. Because of the COVID-19 pandemic, the hearing was conducted by video conferencing.
The case is an appeal of an order made in Carroll County Superior Court in April 2019, when Superior Court Judge Amy Ignatius decided not to reconsider her February 2019 order in which she sided with the town and Settlers.
Douglas Drew Cohen and his brother, Jon, principals of Bellevue, objected to the 2017 town vote in which residents overwhelmingly opted to abandon McMillan Lane with the caveat that it would be abandoned only after Settlers built a new road that would be open to the public. That proposed road is known as Barnes Road Extension.
On Oct. 6, 2017, Bellevue Properties Inc. of Middleton, R.I., sued the town along with Settlers’ entities.
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.
Tilsley told the court that the major issue is that if McMillan Lane goes away, the hotel would have to rely on private entities to maintain its access road.
He said that Lick said that “if Settlers goes belly up and doesn’t maintain Barnes Road Extension, surely the town will step in for us.
“But frankly, if it’s a private road, we have to hold to that. If it’s a public highway, we’re entitled to that. That’s what this case is about.”
Tilsley said McMillan Lane provides a “public highway to reach the hotel” from “a busy commercial corridor.” He stressed that his clients don’t want to rely on a private entity to maintain the road and pointed out that Settlers might in the future be sold to someone else who is less interested in keeping the road maintained.
“The interests of the parties are aligned right now,” said Tilsley, noting that both Settlers and the North Conway Grand want good customer access to their properties.
“Maybe that makes sense in 2018, when times were good,” he said, “but this is in 2020, where retailers have been closed for the last two months, where major retailers are filing bankruptcy.”
When it was his turn, Malia said Barnes Road is the “least traveled” route to the hotel and that the hotel would still have public access from North-South Road and Fairway Lane to Common Court.
The hotel’s main access is through Settlers Green Drive, where the hotel has a recorded easement.
Lick told the court Settlers own the parcels on either side of McMillan Lane. He said the new road was intended to replace what the hotel would lose when McMillan Lane is discontinued.
Lick said the planning board conditioned its approval on the requirement “that this road be made available and open to the public and accessible 24/7 before McMillan Lane can be demolished or taken away or closed in any way.”
He added that trial testimony confirmed that “if for any reason this road is not maintained appropriately, the town has leverage over Settlers Green or whoever owns the property at the time. And that leverage is in the form of revoking their certificate of occupancy, shutting down all their development.”
Lick added the town also can impose fines on the landowner if it doesn’t maintain the road. Thus, if Settlers went out of business, the town would take over a newer road.
In addition to not harming the hotel, there several public benefits to the Market Basket project, Lick said. For one, Conway avoids having to spend $7,800 on road maintenance. For another, it gets tax revenue from the new development and new jobs coming into the community.
Associate Justice Anna Barbara “Bobbie” Hantz Marconi, who was appointed to the court in 2017 by Gov. Chris Sununu, asked why the town didn’t just build a new road.
Malia replied that the town sought to save a bit of money on road maintenance.
Hantz Marconi also asked if there are damages due the hotel for losing a public access way.
Lick replied: “Well, if that’s the case, your Honor, then the ability of the town, any town, to discontinue any road, we’d never be able to go forward, because the argument would be somebody somewhere down the road to which this road connects, may have a right and an interest in the public road, and therefore the town can never discontinue in the road.
“I don’t think that’s the way the statute should be read, nor any Supreme Court case,” he said.
Hantz Marconi asked Tilsley about a 2006 change to the constitution that says “no part of a person’s property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property.”
At the outset, Tilsley said the court must balance the aggrieved party’s interest versus the town’s burden. He said he didn’t think the Supreme Court should consider the tax benefit to the town or the jobs the grocery store would provide.
“I think under the balancing test as it exists, we clearly prevail,” said Tilsley. “Can’t take a public roadway and the benefits that come to the public highway and replace it with the private roadway and say, ‘It’s good enough, it’s the same thing.’ We’d have to rely on the wherewithal and good intentions of a private party to have access as opposed to being able to rely on the town’s legal obligation.”
Also on the Zoom hearing were justices Gary Hicks and Patrick Donovan.