Merrimack citizens’ group seeks judge’s ruling on outlet mall


It’s up to Hillsborough County Superior Court Judge Bernard Hampsey whether a citizens group should be a party in a lawsuit in connection with a proposed regional outlet mall in Merrimack. The suit, brought by developer Chelsea Property Group of New Jersey, seeks to invalidate a so-called protest petition the town accepted in April. A nonprofit group called the Concerned Citizens of Merrimack Alliance was the force behind the petition drive and is seeking intervener status in the case. The protest petition set the threshold for voters to pass a zoning amendment at 67 percent. Chelsea needs the amendment, which would expand uses in a light industrial zone, in order to build a massive center of upscale outlet shops. The zoning amendment received a majority of votes at the Merrimack town meeting in April, but didn’t cross the two-thirds threshold. Chelsea sued, asking the court to throw out the petition. Under state law, a protest petition is valid if it has been signed by owners of 20 percent of the property abutting the site affected by a change in zoning. Based on the town’s calculations, the petition just cleared the threshold, at 20.63 percent. Officials of the citizens group said intervener status would allow the group to receive court filings and keep members abreast of developments in the suit. Attorneys for the group said the status should be granted because members live near the 160-acre site where the center would be built and have been “intimately involved” in the issue. “Several of the members have been deeply involved in these proceedings from the get-go,” said Daniel Will of Devine, Millimet & Branch of Manchester, the firm representing the citizens’ group. Granting intervener status also would be “a fairly efficient way” to ensure citizens’ voices would be heard in the legal proceedings, Will said. Attorneys for the developer have argued that Merrimack, in presenting its case, would represent all the citizens in town, Will noted. However, Will said, “I don’t believe CCMA’s interests are adequately represented by the town of Merrimack.” Chelsea’s attorneys are opposing the request, arguing it would only delay the lawsuit. No trial date has been set, but Hampsey said it would have to be after Jan. 1. “On its face, we don’t think the organization has standing,” said Anna Barbara Hantz of the Nashua law firm Gottesman and Hollis, one of the firms representing Chelsea. Hantz noted that only two CCMA members abut the site and have signed the protest petition. Any number of groups in Merrimack - the chamber of commerce, for example - could seek to intervene in the suit, she said. Instead, the town itself will represent all citizens, she said. “We’ve already been delayed by the proposed intervention in preparing our discovery,” Hantz said. In arguing that Chelsea’s suit should be dismissed, attorney Stephen Buckley of Manchester, representing the town, said Chelsea should have requested a rehearing with the board of selectmen, which accepted the protest petition at its April 21 meeting. Selectmen are competent in areas of land ownership, and any appeals should have been made to that board, not in court, Buckley argued. However, another Chelsea attorney said the developer couldn’t have requested a rehearing because there had never been a hearing in the first place. Selectmen accepted the protest petition at a meeting in which they allowed no evidence or testimony to be presented, said Anthony Feeherry of the Boston law firm Goodwin Procter. Feeherry noted that state regulations and court precedents establish the court and not a town governing board as the proper forum for hearing the appeal of a protest petition. “There is no need for a rehearing, period, under the law,” Feeherry said. Both sides agree on one thing: The case will hinge on whether common land in the Whittier Place development should have been included in the town’s calculations. - PATRICK MEIGHAN THE TELEGRAPH
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