July 17, 2009 Ukiah Valley, Mendocino County, North California
Town sued on denial of Monster Mall Plans
SEABROOK — An Ohio-based shopping center giant is suing the town over the Planning Board’s denial of its proposal to build a 500,000-square-foot retail outlet in town.
The shopping center, which planned to have a Target store as its anchor, would have been the largest in Greater Newburyport, and more than twice as large as Newburyport’s Port Plaza. It would have been located just to the northeast of the busy intersection of Routes 1 and 107.
The town was served notice of the lawsuit yesterday. The more than 60-page brief and its attachments were filed with Rockingham County Superior Court on June 17, according to the stamp on the document, within the 30-day appeal window of the Planning Board’s May 19 denial.
In the brief, Developers Diversified Realty attorney Malcolm McNeill Jr. wrote: “The Planning Board in denying (DDR’s) request for site review approval for its retail shopping center was unlawful and unreasonable and the product of bad faith by the Planning Board, and was arbitrary, capricious and confiscatory.”
Along with requesting the court reverse the board’s denial and grant approval of the project, the suit requests DDR be awarded its costs and attorney fees.
On May 19, after nearly three years of studies, testimony and public hearings, the Planning Board unanimously voted to deny DDR’s proposal to build the shopping center on about 51 acres of land behind Provident Bank. The board rejected the project for safety reasons, saying DDR, by refusing to widen surrounding roads, had not adequately addressed the severe traffic impact the mall would bring to Seabrook.
Planning Board Chairwoman Susan Foote said Planning Board members did not act in bad faith but gave the project their extensive attention and consideration before acting.
“I believe we had more than sufficient testimony from both our own health and safety personnel — police Chief Patrick Manthorn and fire Chief Jeff Brown — and testimony from multiple traffic engineers and the state and the Rockingham County Planning Commission, and that we were justified in denying the project on the health and safety grounds and on a premature development basis because of the traffic the shopping center would create,” Foote said yesterday. “By (DDR’s) own count, that shopping center would have brought 2,000 cars per hour to the roads.”
According to DDR’s traffic and marketing studies, the shopping center, which was to include a large Target and perhaps Best Buy department stores, at peak shopping hours the mall would draw from 1,700 to 2,200 more cars per hour to Routes 1 and 107, about 60 percent of which would be traveling from Massachusetts.
Although town officials repeatedly expressed concern to DDR officials about the negative traffic impact the center would cause to town roads, especially Seabrook’s main thoroughfare — Route 1— and the Route 107 bridge and Interstate 95 overpass, the developer and its traffic consultant said it would be cost prohibitive for the project to accumulate the land needed to widen Route 1 and accommodate the extra cars.
“If they had resolved the Route 1 traffic issue and the Route 107 traffic issue, I think they would have gotten approval,” Foote said. “But I was really appalled that only in the last meeting did it come out that they had never approached the private property owners on Route 1 (concerning acquiring easements or land to widening the road), but simply came to the conclusion after speaking with the state Department of Transportation that it would be too expensive and complicated to widen the road.”
After its initial August 2006 proposal for the shopping center was bogged down by traffic issues and problems with abutters, DDR changed its approach, seeking to phase in its project. It withdrew its original proposal in March 2008 and submitted to build only a 136,000-square-foot Target Store as its first phase. That proposal was approved.
For the Target phase, DDR had offered to put up the money and widen the Route 107 overpass, but wanted to be paid back by future developers for most of the cost. The Planning Board turned down the offer, and approved Target without the requirement of widening the bridge.
DDR then went back to the drawing board and reconfigured its design for another try at getting its full-sized development approved, going back before the Planning Board in 2009 with new plans complete with two entrances, but still no widening of Route 1.
Again the developer ran into traffic problem with the community because it refused to widen Route 1, which many considered the mall’s “front door.” The town’s police and fire chiefs say the traffic the new project would bring would gridlock Route 1 and Route 107, preventing safety vehicle to respond to emergencies, especially on the west side of town on the other side of I-95.
In addition, the Demoulas Company, owners of two other Route 1 shopping centers in town, hired experts who testified that unless DDR widened Route 1, the development would “choke Route 1.”
Thanks to Steve Scalmanini