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April 25. 2013 10:02PM

Hannaford giving up fight to stop Market Basket store


The court's decision, released Thursday, said Hannaford Brothers "has failed to demonstrate that it has a 'direct, definite interest in the outcome'" of the Zoning Board of Adjustment's decision to grant a variance for a Market Basket grocery store. 
Hannaford Brothers said it is giving up its zoning fight to halt a new Market Basket store in Bedford after it lost a key court decision released Thursday.

"My understanding is this will be the final chapter for us," Hannaford spokesman Eric Blom told the New Hampshire Union Leader.

The state Supreme Court ruled Hannaford Brothers isn't eligible to challenge a variance the town's zoning board of adjustment granted to build the Market Basket store on Route 114, some 3.8 miles from a smaller Hannaford store on Route 101.

"An appeal of a ZBA decision is not a weapon to be used to stifle business competition," Associate Justice Carol Ann Conboy wrote in the unanimous ruling released Thursday.

The board had granted a variance to Retail Management and Development (RMD), which develops supermarkets for Demoulas Super Markets Inc., the owner of the Market Basket chain, for a store that exceeded town building size limits. Hannaford fought the case and lost in superior court, bumping the issue to the state's highest court.

Bedford Planning Director Rick Sawyer said Thursday the court ruling "was a decision we thought they'd make all along."

He expects the Market Basket to open the second week in May.

Had the court allowed for Hannaford to fight the variance, "there would have been a trial on the merits on whether the variance should have been granted," Sawyer said.

Hannaford also is suing the town, trying to overturn a town meeting vote that converted the Route 114 area at issue from mixed use to commercial 2, which has no footprint restrictions. That case is scheduled for a bench trial in July.

Sawyer said the town meeting zoning case isn't an issue anymore.

"In my mind, that really doesn't matter because the variance is now set," he said.

In 2008, the zoning board limited Hannaford Brothers to a 40,000-square-foot limit for its store on Route 101. In November 2010, RMD filed an application with the ZBA seeking a variance to exceed that limit and build a store that was 78,332 square feet in size on Route 114.

Hannaford sued after Market Basket was given the go-ahead in October 2011 to construct the store on property previously home to Golfland miniature golf course and Slammers Sports Bar and Grill, about a half-mile from the intersection of routes 114 and 101.

Sawyer said had Hannaford prevailed in both cases, it wouldn't necessarily have meant Market Basket would have needed to tear down the completed supermarket.

There were "a lot of possibilities of how the store could have modified," he said. "You could have had two 40,000-square-foot buildings."

Lawyers for both sides didn't return phone messages.

The Supreme Court's decision said Hannaford Brothers "has failed to demonstrate that it has a 'direct, definite interest in the outcome' " of the ZBA's variance action.

Hannaford "argues that the ZBA's interpretation will directly affect its operations and future expansion options; yet, it does not specify when or even if it actually intends to expand its supermarket beyond 40,000 square feet," the ruling said.

"Thus, the petitioner's claimed injury is at most, 'speculative' ...," the court wrote.

"In effect, the petitioner (Hannaford) argues that any business should be permitted to challenge the validity of any ZBA decision to grant a variance to a competitor," the seven-page ruling said.

According to Town Assessor William Ingalls, the Market Basket property was assessed at $8.66 million as of April 1. The building was complete at that time, but not all the paving was, he said.

"The building is entirely ready to go," Sawyer said. "The on-site work is 99 percent done. There's a few plants that need to be planted on site (Friday)."

Road work on New Boston Road is expected to be completed within 10 days.


mcousineau@unionleader.com

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