Citizens group ousted from Merrimack mall suit


A Merrimack citizens group has been ousted from actively participating in a developer’s lawsuit brought against the town. Hillsborough County Superior Court Judge Bernard J. Hampsey Jr. has denied a request from Concerned Citizens of Merrimack Alliance to be a party in a lawsuit brought by the Chelsea Property Group Inc. of New Jersey. The lawsuit challenges the validity of a petition the town accepted in April. The nonprofit citizens group was behind the so-called protest petition that in April stymied Chelsea’s plans to build a regional outlet shopping center near Exit 10 on the F.E. Everett Turnpike. The group sought intervener status in the case. “The court finds that CCMA has failed to sufficiently articulate its direct interest in the case,” Hampsey stated in the order. He also wrote that the group had not demonstrated it would “suffer any adverse impact as a result of being denied intervener status.” Hampsey did grant CCMA “amicus curiae,” or “friend of the court,” status, which would allow the group to file memoranda in the case. The town filed a motion to dismiss the case, but Hampsey denied that motion as well, stating that issues raised by the company are valid and must be addressed in court. “The court finds that the issues raised ... involve questions of law rather than question[s] of the exercise of administrative discretion,” Hampsey wrote. “It’s a shame when people can’t be heard about things that are going to adversely affect them,” said Merrimack Selectman David McCray, who has been a vocal opponent of the mall. ‘Issue of law’ Lawyers for the company have argued that the petition is not valid because it did not represent the owners of 20 percent of the property abutting the site affected by a zoning change, as required by state law. The town of Merrimack calculated the signatures to represent 20.63 percent of abutting property. The protest petition set the threshold for voters to pass a zoning amendment at 67 percent. While the zoning amendment received a majority of votes at the Merrimack Town Meeting in April, it didn’t cross the two-thirds threshold, therefore denying the developers the ability to build the upscale shopping center. As a result, Chelsea sued and asked the court to throw out the petition. Nashua attorney Gerald Prunier, one of three land-use attorneys representing the company in the case, said the case would now proceed toward trial. A hearing is scheduled for the first week of January, he said. “What the judge said was that (the CCMA’s) relationship to the case was kind of remote,” Prunier said. “Even though some of the people live near the area, the issue is with the town not with the people.” Prunier said that in his ruling, Hampsey determined that the questions the company raised were an “issue of law” and therefore must be heard by the court. - THE TELEGRAPH
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