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November 2, 2009

Court: Seabrook denial of shopping center overturned

SEABROOK — Rockingham County Superior Court Judge Kenneth McHugh has overturned the Planning Board’s denial of a proposal to site a 500,000 square foot shopping center anchored by a Target store off Route 1.

However, according to Town Manager Barry Brenner, Seabrook will appeal McHugh’s finding to the New Hampshire Supreme Court.

On May 19, 2009, the Planning Board voted unanimously to deny the proposal made by Developers Diversified Realty to site a nearly 500,000 square foot shopping center just off the Route 1/107 intersection, on Provident Way, behind Provident Bank. The primary reason for its denial of the project after more than two years of study, hearings and discussion was the traffic impact the mall would have on Seabrook’s major traffic corridors, routes 1 and 107.

DDR itself estimated that from 1,700 to 2,200 new cars per hour would be brought to local roads to visit the shopping center during peak hours. Many town officials believe the mall’s traffic would gridlock Route 1 and 107, two of Seabrook’s most important roadways.

After the denial, DDR’s attorney, Malcolm McNeill, appealed the case to Rockingham Superior Court on the basis that Seabrook’s Planning Board did not have the authority to deny it based on the traffic impact to those state roads. McNeill argued since the state Department of Transportation owns both Route 1 and Route 107, and that agency in essence OKed the project.

According to the court ruling handed down on Thursday, Oct. 29, McHugh agreed with McNeill: The state’s jurisdiction and control over its roads — Route 1 and Route 107 — preempts the town’s control over those roads. Therefore, since DOT approved the project, the Planning Board cannot use the traffic impact the shopping center will have on routes 1 and 107 to deny the proposal.

“This is a very narrow legal issue,” Brenner said today. “That’s the appeal. To get clarification from the Supreme Court on this narrow point.”

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