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Tuesday, January 11, 2011

Blasting at outlet construction site to continue after case dismissed

MERRIMACK – Construction at Merrimack Premium Outlets, ongoing since September, will continue well into 2011 after a lawsuit seeking to stop rock blasting was dismissed last month.

The suit, filed in November by Merrimack resident Michael Mills, claims that the developer, Premium Outlets, failed to adhere to the water testing conditions required under the project’s development agreement.

A superior court judge denied the initial motion in November, saying that as an individual, Mills can’t enforce the town’s contract. And last month, a court clerk finalized the matter, dismissing Mills’ motion for reconsideration.

The controversial 130-store outlet mall has been under construction since September.

“The petitioner does not have any legal rights under the agreement between the Town of Merrimack and (Merrimack Premium Outlets),” judge Jacalyn Colburn, of Hillsborough County Superior Court, wrote in her initial decision. “(He) does not have any cognizable claim against (the developer) to enforce the conditions contained in the … plan.”

Mills, who lives within 500 feet of the construction site, near Exit 10 off the F.E. Everett Turnpike, first brought his concerns to town officials last summer, alleging the developer and its consultants had strayed from the timing, schedule and placements of the water tests outlined in the operations and maintenance plan.

The company’s lapses have left the town without legal recourse should the project affect the area’s water supply, Mills warned.

Town officials and consultant groups acknowledged the deviations from the testing conditions. But they declined to take action, saying the lapses didn’t substantially affect the testing results.

“I went to the Planning Board. I got no response there,” Mills said. “I went to the Town Council, I got no response there. … No one wants to hear about it.

Now, with the court having dismissed his case, Mills plans to take his concerns back to the town, filing a complaint with the Zoning Board of Adjustment in hopes it will take up the issue.

Town officials didn’t return calls for comment Monday.

“These issues are still just as important” as they were last summer, Mills said Monday. “They will be critical to the town the day there’s a water problem. But, there will be no way then to show whether this problem existed when they started.”

With the court matter decided, construction crews are continuing work. After clearing the land and doing some staging work, crews from Maine Blasting and Drilling, the project contractor, started blasting in November.

They’ve been forced to stop twice since, held up by sound and vibration violations. But the necessary blasting permits were restored last month and the crews have continued blasting three or four days each week.

The first phase of the $100 million project, including 100 stores to be constructed over 392,000 square feet, is likely to open in 2012, developers have said.

“We are pleased the court dismissed the initial claim,” Michele Rothstein, vice president of marketing for Premium Outlets, said in a written statement. “We are now looking forward to bringing great outlet shopping to the area.”

Jake Berry can be reached at 594-6402 or