Court backs rulings on Lowe’s project at mall

PRESQUE ISLE – Plans for the development of a Lowe’s Home Center at the Aroostook Centre Mall are back on track after a Superior Court justice upheld two decisions by the Presque Isle Zoning Board of Appeals to grant special exceptions to the businesses.

Justice E. Allen Hunter ruled on May 12 that the zoning board of appeals followed the city’s land use and development code procedures and met the requirements for granting the special exceptions, which involved reducing the number of required parking spaces at the Aroostook Centre Mall complex.

Hunter made his ruling after national retail giant Kmart filed an appeal of the zoning board of appeals decision against the city of Presque Isle, the Aroostook Centre Mall and Lowe’s Home Centers.

Kmart officials last fall contested the board’s decision to grant the special exceptions, citing traffic hazards, a possible reduction in shoppers and the city’s failure to notify the business about the matter.

Richard Engels, a Presque Isle attorney who represented Kmart in the appeal, said Tuesday that he was not authorized by his client to make any comments at this time about the court ruling.

Edmond Bearor, a Bangor attorney who represented the Aroostook Centre Mall and Lowe’s, said his clients were pleased that the matter finally was concluded.

“It’s unfortunate that it was appealed and that it took awhile for the appeal process to run its course,” Bearor said Tuesday. “We’re hopeful that Lowe’s development will go forward now.”

Bearor added that mall owners are pleased that they soon may have a substantial new anchor tenant on the property.

Lowe’s officials have proposed the construction of a 147,000-square-foot facility on the mall complex in the spot where Hoyts Aroostook Cinema building now stands.

Company officials as well as officials from the Aroostook Centre Mall applied last fall to reduce the parking density requirements under the city’s land use and development code.

The Lowe’s appeal was to reduce the ratio from 4.25 spots per 1,000 square feet of gross retail space to 3.49 based on parking studies conducted at Lowe’s sites throughout New England.

The mall’s appeal was to reduce the ratio to 3.07. Included in the discussion was a 20,000-square-foot pad on the Maysville Street side of the mall property that has not been developed and has no tenant yet.

The zoning board of appeals discussed both appeals for special exceptions during its Oct. 12, 2004, meeting and unanimously approved both.

Kmart was represented, participated in the hearing and argued that reduction in the parking density requirement would be detrimental to their business in the mall, according to court documents.

Soon after the meeting, Kmart officials filed an appeal of the board’s decision, which was sent directly to Aroostook County Superior Court: Because of the way the city’s land use and development code is written, all appeals of zoning board decisions are sent to Superior Court, according to a city official.

As part of the appeal, Kmart made a motion for a trial of the facts, which was denied. In early May, parties involved in the case made oral presentations to Hunter.

In explaining his ruling, Hunter stated in his order on the appeal that the burden of persuasion rests with the party seeking to overturn the local decision, or Kmart.

Kmart argued in its appeal that the board erred in granting a special exception to the parking requirement because it did not identify what the mall and Lowe’s specifically proposed to do with the 20,000-square-foot lot. Hunter stated that the city’s land use and development code does not require that the proposed use require such identification.

“A ‘retail store’ is all the detail the Code seems to require when determining what level of parking density is appropriate,” the order reads. “Reading the Code to require more details than the Code explicitly and implicitly requires would constitute an error of law.”

With a final ruling on Kmart’s appeal, city officials believe they can now lay the matter to rest.

“It indicates as much as anything that they [the zoning board of appeals] make every effort to do things in accordance with the law and established practices,” Jim Brown, the city’s director of economic and community development, said Tuesday. “It appears that the court certainly did uphold their decision. Now things initially approved can go forward.”