10-08-21 Market Basket tight

A sign signals the coming Market Basket behind Settlers Green Streetside last Friday morning. (RACHEL SHARPLES PHOTO)

CONWAY — A Market Basket could be open in North Conway by fall or spring of 2023, the grocery store’s developer told the Sun last Friday following a New Hampshire Supreme Court decision that clears the way for construction to finally begin.

The state high court issued its ruling in Bellevue Properties Inc. v. 13 Green Street Properties (Settlers) on Friday, Oct. 8.

Bellevue Properties, owners of the North Conway Grand Hotel, has delayed the project for years, filing suits claiming that traffic and road maintenance issues would impact their business. The town planners were sued along with Settlers.

The case was argued May 12, but origins of the litigation go all the way back to November 2019 in Carroll County Superior Court.

The Friday decision marks the third and apparently final in a series of suits Bellevue has unsuccessfully launched against Settlers to try to quash the Market Basket project.

Asked for comment, Robert Barsamian, Settlers Green principal and developer of the proposed Market Basket, told the Sun by phone: “I couldn’t be happier with the decision. It’s been a long time coming but we’re thrilled.”

Barsamian had sought to build a grocery store, rumored to be Market Basket, behind TJ Maxx, located at 1584 White Mountain Highway across Route 16 from Settlers Green in North Conway. He got planning board approval in 2012 but ended up in a court battle with Hannaford that ended in early 2014.

The new site is just south of Home Depot, east of Settlers Green Streetsde and north of the North Conway Grand Hotel.

Barsamian said the land was cleared at the site this past spring. Signage announcing the Market Basket store has also gone up.

“Now we just have to take that next step, which is beginning all the underground work, all the utility work, all the site work, and we’re going to be starting that ASAP,” Barsamian said. “So I think that in the next 30 days, we’ll be mobilizing and doing everything we can through the winter.”

He also said Market Basket has to decide when they want to open. He said the grocery store chain has “a lot going on.”

Asked how he would summarize the lawsuit, Barsamian said it was based on an “archaic” statute typically invoked by parties set to lose sole access to their property. But, he said, Bellevenue’s claims made “no sense” because the road was being replaced and McMillan Lane wasn’t the hotel’s primary access anyway.

“This law was not for a situation like this, and they just twisted it to try to take advantage of it,” said Barsamian.

In 2018, the Conway Planning Board unanimously gave conditional site-plan approval to Settlers Green for a 69,845-square-foot Market Basket store between Barnes Road and Common Court in North Conway.

Much of the litigation over the years centered around how the project involved discontinuing a public road called McMillan Lane and replacing it with a private road. Residents voted in 2017 that the road could be discontinued if it’s replaced with a private road so long as that new road is open to the public.

Both the old road and the new road would connect Barnes Road to the public section of Common Court.

Bellevue filed the petition to “quiet title to the land underneath McMillan Lane” in 2019. Bellevue claimed its easement rights could not be repealed by a 2017 town vote taken to discontinue the road without its written consent. But Carroll County Superior Court Judge Amy Ignatius sided with Settlers and granted its motion to dismiss in May of 2020.

Bellevue was represented by Roy Tilsley and Christina A. Ferrari of Bernstein Shur of Manchester, and Settlers by Derek Lick of Sulloway & Hollis of Concord. Unlike some of the previous cases, the town of Conway was not a party in this third case.

The Supreme Court said Ignatius reached the correct decision but for a different reason. Her decision was based on Bellevue’s property not directly abutting McMillan Lane.

The Supreme Court opinion is based on the fact that Bellevue would continue to have ample access even after the change.

The opinion, written by Chief Justice Gordon MacDonald, reads in part:

“A recorded easement allows Bellevue to travel over the private road and the private section of Common Court to access its property.

“Moreover, the new private road (that has yet to be constructed) will, like McMillan Lane, enable public access to Bellevue’s property from Route 302 to the public section of Common Court via Barnes Road.

“And as explained above, the planning board has required 13 Green St. to ‘substantially complete and open to public use’ the new road ‘prior to closure of McMillan Lane.’ Under these circumstances, as a matter of law, even without McMillan Lane, Bellevue has ‘adequate and reasonable’ access to its property.”

“Therefore, as a matter of law, a right of access over McMillan Lane is not reasonably necessary for Bellevue’s ingress and egress to its property.

“Accordingly, we uphold the trial court’s determination that Bellevue cannot assert a statutory right of access over McMillan Lane pursuant to RSA 231:43, III.”

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(1) comment

roofer2469

By the time it opens I'll be down in the southwest part of the state where they are everywhere, Shameful taking this long.

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