Judge rejects Merrimack mall protest petition


A Hillsborough County Superior Court Judge has thrown out a so-called “protest petition” that has kept developers from building a regional outlet center in Merrimack. The developer, Chelsea Property Group Inc. of New Jersey, has been working since fall 2004 to build a center of upscale shops on 160 acres owned by Nashua real estate developer Thomas Monahan. The site is located along Industrial Drive near Exit 10 of the F.E. Everett Turnpike. By invalidating the petition, Judge Bernard Hampsey Jr. opened the door for Chelsea to present plans for the 550,000-square-foot, open-air corridor center to the planning board. “We look forward to working through the remaining permitting process and to building a world class Premium Outlet center that will create substantial tax revenue, good quality jobs and great shopping for Merrimack,” Mark Silvestri, a Chelsea vice president, said in a prepared statement. With the court ruling, the fight in Merrimack will either move on to the town planning board or to the N.H. Supreme Court. “There’s still a long way to go, and we’ll be there every step of the way,” said Nancy Harrington, president of the Concerned Citizens of Merrimack Alliance, a group that has been fighting the retail center. Chelsea has built a number of similar facilities across the country, including the Wrentham Village Premium Outlets off of Interstate 495 in Massachusetts. Many have become tourist destinations. The lawsuit was brought jointly against Merrimack by Chelsea Property Group of New Jersey and Monahan-Fortin Properties. It challenged the town’s calculation of the protest petition, which was spearheaded by members of the Concern Citizens group. A protest petition is a mechanism created by state law that allows abutters of land where a zoning change is proposed to set a higher threshold for voters at a town meeting to approve the zoning change. In the case of Merrimack, the zoning change expanded permitted uses in a light industrial zone. Chelsea’s lawyers argued the protest petition wasn’t valid because it did not represent the owners of 20 percent of the property within a 100-foot zone surrounding the site, as required by state law. The town of Merrimack calculated the signatures to represent 20.63 percent of property within that buffer. The protest petition set the threshold for voters to pass a zoning amendment needed for the center to be built at 67 percent. While the zoning amendment received a 55 percent majority at the Merrimack Town Meeting last April, it didn’t cross the two-thirds threshold, and developers were denied the ability to build the upscale shopping center. Chelsea sued, asking the court to throw out the petition. Hampsey agreed with Chelsea’s argument that common land in the Whittier Place development should not have been included in the town’s calculations. Once the common land was taken out, the percentage of abutting property owned by petition signers dropped to less than 16 percent, making the protest petition invalid. Owners of only 11 lots of the 64-lot Whittier Place subdivision signed the petition, and none of the 11 lots were in the buffer zone. None of the signers of the protest petition from Whittier Place “specifically identified or otherwise referenced” the two common land parcels, Hampsey noted in his ruling. Since state law requires protest petition signers to properly identify land they purport to represent, the two lots should be tossed out of the property calculation for the petition, Hampsey ruled. With the ruling, Chelsea is free to submit plans to the planning board, where the Concerned Citizens are expected to continue to challenge the development on many of the same issues they’ve raised for the past two years. The citizens group contends, among other things, that the center would harm the environment, particularly a watershed in the area; create a traffic nightmare at the Exit 10 tolls and on Continental Boulevard; and, because of its strain on police and fire personnel, cost the town more than the shops would generate in tax revenue. - THE TELEGRAPH
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