20181012 PCA Perspective Views.pdf

An architectural elevation shows how the Market Basket supermarket planned for North Conway would look. (COURTESY RENDERING)

CONWAY — The Carroll County Superior Court has granted the town of Conway's request for a time extension in order to provide "voluminous" materials related to the planning board's decision to approve a Market Basket supermarket in North Conway.

The planning board unanimously gave conditional site-plan approval on Nov. 8, 2018, to the owners of Settlers Green to build a 69,845-square-foot Market Basket store between Barnes Road and Common Court.

The company that owns the North Conway Grand Hotel, Bellevue Properties of Middletown, R.I., is seeking to have the court reverse that decision.

The North Conway Grand sits off Common Court adjacent to Settlers Green.

Bellevue Properties Inc. filed suit against the town on Dec. 7. On Dec. 10, Superior Court Judge Amy Ignatius agreed to take the case while staying the planning board decision that led to the appeal.

Bellevue's principals are brothers Jon E. Cohen and Douglas Cohen.

They also are suing the town, along with Settlers Green, to reverse a 2017 town vote to close McMillan Lane and replace it with an extension to Barnes Road.

That case was heard in a bench trial in December.

Now, Bellevue is asking the court to review a series of approvals for lot line adjustments and 74,491 square feet of retail business, service and personal service space, and associated infrastructure, including a grocery store — i.e., Market Basket.

The suit refers to several business entities in the Settlers Green family as "the applicants," as they applied to the planning board for several approvals, including one for the grocery store.

Part of Ignatius' Dec. 10 order was for the planning board to "deliver certified or sworn copies of all papers acted on by the Board to the Superior Court Clerk at Carroll County Superior Court."

On Jan. 28, the town's lawyer Peter Malia of Hastings Malia in Fryeburg, Maine, filed for a time extension. His motion says plaintiff's attorney Brett Allard would not object.

"The Certified Record in the above captioned matter is voluminous, and it has been sent to Minuteman Press for copying," said Malia in his motion. "It is unlikely that the Town will be able to file the Certified Record by Jan. 28, 2019. Therefore, the Town requests a 30-day extension of the time to file the Certified Record although the town does not anticipate that it will need the full 30 days and will endeavor to file the record as soon as possible."

On Jan. 25, Clerk of Court Abigail Albee approved the motion.

A few days later, Settlers' attorney Derek Lick of Sulloway and Hollis in Concord had a motion approved for Settlers to intervene.

"Because the approval at issue in this case directly impacts the interests and rights of Settlers, it wishes to be involved in the case to defend the propriety of the Planning Board's approval of Settlers' site plan review and boundary line application," wrote Lick who added that both the town and Bellevue agree to allowing Settlers in to intervene.

In addition to filing the request for more time, Malia also filed the town's answer to Bellevue's lawsuit on Jan. 24.

The suit was filed by attorneys Roy W. Tilsley Jr. and Brett W. Allard of Bernstein, Shur, Sawyer and Nelson P.A. law firm of Manchester.

Malia said Tuesday, "I just picked up the copies of the certified record from Minuteman Press a couple of days ago. The original will be hand-delivered to the Carroll County Superior Court tomorrow. It is rather voluminous, with several traffic studies, etc."

Bellevue raises four issues for appeal, claiming that:

• The planning board acted illegally and unreasonably in granting conditional final site plan approval because there was no evidence before the board such that it could determine whether interior traffic within Settlers Green will circulate freely and safely.

Bellevue says one reason for a site-plan review process is to make sure a project is safe for drivers and pedestrians alike. They say a traffic study done by Gorrill Palmer of South Portland, Maine, addressed traffic coming and going from Settlers but not internal traffic.

"As such, the Gorrill Palmer report could not have enabled the board to find that there will not be threats or impacts to pedestrian safety as a result of the applicants' proposed development," states the lawsuit, which also claims the report understated the estimated number of internal trips to the proposed grocery store from other areas of Settlers Green by "at least 10 percent."

"Currently, customers are more likely to park at one of many small parking lots within Settlers Green, then walk among the various stores within," the lawsuit states. "However, the supermarket is proposed on its own site, with its own large parking lot. As such, it is more likely that the proposed supermarket will generate traffic volumes the same as or, or similar to, a standalone store rather than as part of a larger retail outlet center."

• The board acted illegally and unreasonably when it granted the applicants' request for use of the alternative parking standard without first finding that the applicants had satisfied the test for use of the same.

The suit says site-plan regulations for retail space calls for one parking spot per every 200 square feet of gross area. However, the board can deviate from that when there's evidence that another standard would better fit the intent of that chapter of the town ordinances.

The suit says planning board meeting minutes of Oct. 25, 2018, show no discussion of the approval during the meeting.

The effect of the decision to use the "Urban Land Institute Alternative Parking standard is that the number of parking spaces needed was reduced from 967 to 768 or a total of 199, the suit says.

"The board failed to make such findings," states the lawsuit. "Rather, the board simply granted the applicants' request for use of the alternative parking standard without holding any substantive discussion as to why or how use of the alternative standard would better accomplish the intent of the chapter relative to the Applicants' proposed development."

• Even if the board did properly find that the applicants could utilize the alternative parking standard, there was no evidence before the board showing that the applicants have enough parking spaces to satisfy the standard.

The lawsuit says it's unclear that there will be enough parking even with the alternative standard because the applicant included an unspecified number of spaces at Merlino's Family Steakhouse.

• In granting conditional final site plan approval to the applicants, the board ignored the common scheme of the development within Settlers Green.

This part of the lawsuit says the planning board didn't make sure the approval didn't conflict with other approvals or encumbrances in terms of shared parking arrangements, nor did it consider traffic flow.

"As such, the board ignored the common scheme of development within Settlers Green by viewing the applicants' properties in isolation rather than as part of a larger planned development to the detriment of the petitioner whose property will be subjected to increased parking intensity as a result thereof," the lawsuit states.

Bellevue seeks to have the court reverse the planning board's decision to grant final site plan approval, deny the application or send the application back to the planning board "with instructions to review the application in light of the proper legal standards at a public hearing which the petitioner may participate.

They are also seeking attorneys fees and that the court grants "further relief as may be equitable and just."

Malia's answer goes though the lawsuit point by point. He denies many of the allegations it contains. Malia asks the court to do the following:

-- Affirm the Conway Planning Board's decision granting the conditional final site plan approval for the application;

-- Award the Town of Conway reasonable attorneys' fees and costs; and

-- Grant such other and further relief as the court deems just and equitable.


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