CONWAY — There are now dueling motions filed in Carroll County Superior Court for and against the planning board's decision to approval of plans for a Market Basket grocery store.
For a second time, the owners of the North Conway Grand Hotel are preparing to appeal Conway Planning Board's approval of plans for a Market Basket grocery store in North Conway.
Bellevue Properties filed a lawsuit against the town Dec. 7, 2018, asking 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, including the Market Basket store.
In the suit, 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.
Ignatius issued her 13-page order on April 23 and mostly agreed with the planning board, but she did ask the board to revisit the issue of parking.
Following through on a court order to revisit the issue of parking for the Market Basket, the planning board on 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 board also unanimously approved a waiver request from the owners of Settlers Green to not mandate another 48 parking spaces.
On June 24, Tilsley filed a motion as to "set aside" the planning board's May 23 decision. The motion asks the court to do the following: reverse the planning board's decision to allow the 1999 parking standard instead of the 1982 standard, reverse the board decision to waive parking regulations, find that the April 23 order had not been met and reverse the conditional final site plan approval and instead deny the application.
The gist of the argument is Tilsley says the Court's April order was for the planning board to make sure there was enough parking to "satisfy the the Merlino's parking easement and the 1982 (Urban Land Institute's Shopping Center) standard." Tilsley said this would require 849 parking spaces rather than 801, as proposed.
"The Applicants failed to prove to the Board that they had sufficient parking spaces to satisfy the parking easement and the 1982 ULI Standard," said Tilsley. "The court's condition precedent was not satisfied and, the Application should therefore be denied."
Malia and Lick filed their objection on July 1. In the objection, they write that the planning board had the option of using the 1982 standard or the 1999 parking standard. Their objection highlights statements from planning board member Steve Porter that the old standard led to "too much asphalt" and that the 1999 standard led to more aesthetically pleasing outcomes.
"This court should defer to the Planning board which has now twice found the proposed parking to be sufficient," wrote Lick and Malia. "As updated, the supplemental records makes abundantly clear, the board unanimously approves of Settlers' approach to parking for the development and found it to be adequate and appropriate, based on the board members' collective and extensive experience with the Settlers' Green development and in applying the ULI parking standard to retail projects in Conway."
On June 12, Tilsley filed an "assented" motion (meaning agreed to by the other side) asking the court to accept jurisdiction of a new appeal of the planning board's decision.
"The petitioner wishes to appeal the board's decision at the May 23, 2019, public hearing," wrote Tilsley. "However, since this court did not specifically retain jurisdiction when it modified the conditional approval, it is not entirely clear to the petitioner whether such an appeal constitutes a new action under RSA 677:15 or whether it can be considered in the context of this pending case."