Judge tosses shopping plaza denial

By Angeljean Chiaramida
Staff writer

November 03, 2009 03:59 am

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SEABROOK — A Superior Court judge has thrown out the Planning Board's denial of a proposed 500,000-square-foot shopping center on Route 1.

However, the ruling from Rockingham County Judge Kenneth McHugh is not the end of this nearly 3-year-old, sometimes hostile, saga between Ohio's shopping center giant Developers Diversified Realty and the town. Town Manager Barry Brenner said Seabrook will likely appeal McHugh's ruling to New Hampshire's Supreme Court.

Brenner said the Planning Board chairwoman is in favor of the appeal, and the entire board will vote on it tonight.

"Judge McHugh pushed aside all the other claims of bad faith made by (DDR) against the town," Brenner said. "His decision was based on one issue, and it is a very narrow legal issue. That's the appeal. To get clarification from the Supreme Court on this narrow point."

If built, the Route 1 shopping center would be almost three times as large as Newburyport's Port Plaza. The number of stores in it could be as many as two dozen or more, depending on the square footage requested by retailers. One potential anchor store is Best Buy.

The developers already have approval to build a Target on the site.

After 21āÑ2 years of debate, numerous studies and a score of public hearings, the Planning Board voted unanimously in May to deny the retail outlet just east of the Route 1āÑ107 intersection, behind Provident Bank on 51 acres of land that once held the Venture Corp. factory.

The primary reason for the rejection was the impact the mall would have on Seabrook's major traffic corridors, Routes 1 and 107, both of which are state-owned highways, and the refusal of DDR to make the road-widening improvements the town wanted to accommodate the traffic.

DDR's own marketing and traffic studies estimated that from 1,700 to 2,200 new cars per hour would be attracted to local roads to get to the shopping center during peak hours. Many town officials believe the mall's traffic would gridlock the Seabrook section of Route 1 and 107, two state roads that are also Seabrook's main thoroughfares.

After the May denial, DDR's attorney, Malcolm McNeill, appealed the case to Rockingham Superior Court. One of his primary arguments was that Seabrook's Planning Board did not have the authority to deny the mall based on the traffic impact on state roads.

According to the court ruling handed down last week, McHugh agreed with McNeill that the state's jurisdiction and control over Route 1 and Route 107 pre-empts the town's control over those roads.

"We're very pleased with the decision," McNeill said yesterday. "The court said the town exceeded its authority."

But McHugh's ruling leaves room for appeal, Brenner said. In the ruling, McHugh states the only reason he is reversing the Planning Board's denial is because of the issue of state jurisdiction over its roads.

"Unfortunately for the town," McHugh wrote, "The court's review of the law indicates that the doctrine of pre-emption is applicable to all state roads ... State roads come under the exclusive control of the Department of Transportation. Whatever decisions that department makes concerning those roads cannot be challenged by town boards, even those roads run through their town."

McHugh said Seabrook must presume that any traffic increase to routes 1 and 107 brought by the shopping center will be adequately addressed by the mitigation offered by DDR. Were it not for the doctrine of pre-emption, he would be "compelled" to approve the Planning Board's denial, McHugh wrote.

For Brenner and others, that part of the ruling is a premise for the Supreme Court appeal.

"It almost seems as if Judge McHugh is suggesting the town consider an appeal of the ruling," said Seabrook fire Chief and attorney Jeff Brown. "Barry's right. This is open for interpretation."