North Conway Grand sues town over Panera

CONWAY — The owners of the North Conway Grand Hotel are suing the Conway Planning Board over the approval of a Panera Bread restaurant.

The case “Bellevue Properties Inc. v. Town of Conway” was heard in Carroll County Superior Court on Tuesday morning with Judge Mark Attorri presiding.

Representing Bellevue Properties was Roy Tilsley Jr. of Bernstein Shur of Manchester. He asked Attorri to reverse the planning board’s conditional site plan and unit subdivision approval. He is also seeking court fees.

Representing the town was Jason Dennis and Jonathan Burk of Hastings Law Office in Fryeburg, Maine. Settlers Green (listed as an intervenor) was represented by Derek Lick and Meredith Farrell Goldstein of Orr and Reno in Concord. Most of the litigating was done between Tilsley and Lick.

Bellevue filed several lawsuits against the Settlers and/or the town over the approval of the Market Basket, which was ultimately built and opened recently.

Panera would be located on a small triangular lot just south of Barley & Salt. In July, the planning board conditionally approved the change of use for the (not yet built) Building O from 2,323 square feet of personal service/business service establishment to 3,705 square feet of dining space.

The gist of the lawsuit: if Panera is built, its customers may find it easier to park at the hotel’s lot than at one for Settlers’ customers.

“Our concern is relatively simple,” said Tilsley, adding the hotel’s lot is within 400 feet of Panera and some of Settlers' parking is further away.

“Patrons who don’t find parking are naturally going to go, like water flowing downhill, to the closest available parking spaces.”

The lawsuit says town regulations require that “offsite parking” on another lot of record must be within 400 feet of the parking area onsite. However, of the 791 spaces, 193 are greater than 400 feet away and some are as far as 1,000 feet away. Many of the 193 spaced are blocked from view by Settlers buildings.

The lawsuit says the Setters’ “R2 Lot” is “short 94 spaces,” so it is common for Settlers’ customers to “seek off-premises parking.”

Tilsley said he brought up these concerns during the planning board process but the board never granted a waiver from town regulations to “remedy the application’s clear failure to provide parking within 400 feet of the on-site parking as required.”

Dennis denies that the town failed to follow its own regulations as Tilsley alleged. He also said the plans went through through staff review by the town and North Conway Water Precinct.

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Tilsely also faults the planning board for allowing Settlers to use the Urban Land Institute 1999’s parking standards without articulating the reasons it chose to allow Settlers to do so.

Using this standard will lead to a shortage of parking, he said.

Lick replied that the plan for parking has essentially already been through the courts during litigation about Market Basket.

During the litigation over Market Basket, Building O was slated to be larger and used for retail/personal services. Now, Building O is proposed to be smaller and will require less parking than before.

“This is a very simple case,” said Lick. “This is a smaller use than initially approved and affirmed over and over again.”

In his written answer to the lawsuit, he says all the parking the Panera needs is located next to the building.

Bellevue has been suing the town and Settlers for years over parking concerns. “This parking battle has been going on for more than a decade,” said Lick.

The Planning Board has been a party in several of those cases over the years.

Lick also said that the planning board was free to use the Urban Land Institute parking standards and argued in his paper filings that the planning board meeting record does reflect the board’s rational for using the standard.

Attorri gave the parties 10 more days to submit information. After that, he will make a ruling at some point.

Any decision he makes is likely to go to the New Hampshire Supreme Court.

"This an interesting case, and I never hesitate to let counsel know when I need something more or if I still have questions," said Attorri. "I don't like to run up people's costs, but I do my best to get it right."