Whether there will be more coffee and doughnuts in Winchester’s future should be known soon.
After a court hearing Monday, a judge is weighing whether to uphold the town planning board’s denial of a proposed combination gas station, convenience store and Dunkin’ Donuts, reverse it or send the matter back to the board.
S.S. Baker’s Realty Co., which has proposed the development at the northeast corner of routes 10 and 78, filed the lawsuit in August, after the Winchester board rejected the plan in July. The company is proposing a roughly 3,600-square-foot, single-story building on about 1.19 acres at 4 Warwick Road (Route 78). The building would include a drive-through for Dunkin’ Donuts.
In its denial of the project, the planning board cited concerns about traffic flow at the intersection if the business were to move in, and that the project would overwhelm the site.
Attorneys for all parties involved in the case advocated that Cheshire County Superior Court Judge John C. Kissinger Jr. make a decision and not remand the case back to the planning board.
Attorney Gary J. Kinyon of Keene, representing S.S. Baker’s Realty, said his client submitted ample evidence to support the approval of the plan, and the board’s denial was improper.
“We ask the court approve the site plan rather than consider a remand to the board. I don’t think it’s necessary because the evidence in support of approval is so overwhelming,” he said.
Attorney Matthew R. Serge of Concord, representing the Winchester Planning Board, disagreed, saying there were competing expert reports about the effect the project would have on safety at the intersection of routes 10, 78 and 119.
One of the reports was a traffic impact study done by Laurie M. Rauseo, a professional traffic engineer, for S.S. Baker’s Realty, which found the new business wouldn’t adversely affect the intersection. The other was a peer review of that study done for Kulick’s Inc., a nearby market and gas station, which questioned some of Rauseo’s findings. The owner of Kulick’s, Stanley S. Plifka Jr., opposes the project.
“In this situation, it’s the plantiff’s burden to offer sufficient evidence that this will be safe. Here the board had a legitimate credible expert report that called that into question, and the board was entitled to rely on that,” Serge said.
He and Attorney Kelly E. Dowd, who represented Kulick’s Inc., asked Kissinger to affirm the planning board’s decision.
“I think you will find the board tried to be very fair and patient throughout the process. There were lots of questions, and lots of information to deal with, as well as personal observations of board members, which they’re allowed to consider in making their decision,” Serge said.
Throughout Monday’s hearing, Kinyon, Serge and Dowd battled over methodology and conclusions of the traffic impact study, the validity of the peer review report of the study, the content of the minutes from the planning board hearings, and the powers of a planning board.
Kinyon said the meeting minutes must be examined carefully to see if there was any adequate basis for the planning board to deny the plan.
“I would suggest to the court there is simply no basis. There are simply vague statements, opinions and unsupported statements peppered throughout the minutes of the meetings that simply say, ‘We think there should be no left turn onto Route 10 south,’” he said.
Dowd said the planning board’s reasoning in rejecting the plan wasn’t vague.
Another area of contention during the hearing was the two driveway permits granted to S.S. Baker’s Realty by the N.H. Department of Transportation. The permits allow for an entrance and an exit to the property from Warwick Road and Route 10.
While Kinyon argued that those permits couldn’t be ignored, Serge and Dowd said the planning board can deny applications based on traffic safety even if the access is to a state highway.
“There is no statement anywhere in (the town’s) regulations that basically says if you get a DOT permit, you’re safe and you’re fine,” Serge said.
Kissinger did not give a time frame for his decision.
After a court hearing Monday, a judge is weighing whether to uphold the town planning board’s denial of a proposed combination gas station, convenience store and Dunkin’ Donuts, reverse it or send the matter back to the board.
S.S. Baker’s Realty Co., which has proposed the development at the northeast corner of routes 10 and 78, filed the lawsuit in August, after the Winchester board rejected the plan in July. The company is proposing a roughly 3,600-square-foot, single-story building on about 1.19 acres at 4 Warwick Road (Route 78). The building would include a drive-through for Dunkin’ Donuts.
In its denial of the project, the planning board cited concerns about traffic flow at the intersection if the business were to move in, and that the project would overwhelm the site.
Attorneys for all parties involved in the case advocated that Cheshire County Superior Court Judge John C. Kissinger Jr. make a decision and not remand the case back to the planning board.
Attorney Gary J. Kinyon of Keene, representing S.S. Baker’s Realty, said his client submitted ample evidence to support the approval of the plan, and the board’s denial was improper.
“We ask the court approve the site plan rather than consider a remand to the board. I don’t think it’s necessary because the evidence in support of approval is so overwhelming,” he said.
Attorney Matthew R. Serge of Concord, representing the Winchester Planning Board, disagreed, saying there were competing expert reports about the effect the project would have on safety at the intersection of routes 10, 78 and 119.
One of the reports was a traffic impact study done by Laurie M. Rauseo, a professional traffic engineer, for S.S. Baker’s Realty, which found the new business wouldn’t adversely affect the intersection. The other was a peer review of that study done for Kulick’s Inc., a nearby market and gas station, which questioned some of Rauseo’s findings. The owner of Kulick’s, Stanley S. Plifka Jr., opposes the project.
“In this situation, it’s the plantiff’s burden to offer sufficient evidence that this will be safe. Here the board had a legitimate credible expert report that called that into question, and the board was entitled to rely on that,” Serge said.
He and Attorney Kelly E. Dowd, who represented Kulick’s Inc., asked Kissinger to affirm the planning board’s decision.
“I think you will find the board tried to be very fair and patient throughout the process. There were lots of questions, and lots of information to deal with, as well as personal observations of board members, which they’re allowed to consider in making their decision,” Serge said.
Throughout Monday’s hearing, Kinyon, Serge and Dowd battled over methodology and conclusions of the traffic impact study, the validity of the peer review report of the study, the content of the minutes from the planning board hearings, and the powers of a planning board.
Kinyon said the meeting minutes must be examined carefully to see if there was any adequate basis for the planning board to deny the plan.
“I would suggest to the court there is simply no basis. There are simply vague statements, opinions and unsupported statements peppered throughout the minutes of the meetings that simply say, ‘We think there should be no left turn onto Route 10 south,’” he said.
Dowd said the planning board’s reasoning in rejecting the plan wasn’t vague.
Another area of contention during the hearing was the two driveway permits granted to S.S. Baker’s Realty by the N.H. Department of Transportation. The permits allow for an entrance and an exit to the property from Warwick Road and Route 10.
While Kinyon argued that those permits couldn’t be ignored, Serge and Dowd said the planning board can deny applications based on traffic safety even if the access is to a state highway.
“There is no statement anywhere in (the town’s) regulations that basically says if you get a DOT permit, you’re safe and you’re fine,” Serge said.
Kissinger did not give a time frame for his decision.
Meghan Foley can be reached at 352-1234 extension 1436 or mfoley@keenesentinel.com. Follow her on Twitter @MFoleyKS.
5 comments:
And this is why myself and no one else in my family has shopped at Kulicks since last summer!
Why does Plifka feel he has a right to stop other business's from coming into town and providing us services and jobs?
he also used his lawyer to try to stop the dollar store from coming in.
We as a struggling town cannot allow people like this to use their money and influence to hold a monopoly, it will not be good for the consumer it will only be good for him!
It will be interesting to see if the judge reads the minutes to this fiasco, The planning board claimed many times they were worried about the traffic problems that may be created because of the drive through window but Planning board member Gordon asked if they would resubmit the plans without gas pumps?? how do the gas pumps effect the traffic from the drive through window?.
I'm also curious how the planning board felt it had the right to deny this because of traffic concerns after the state of NH DOT did a study and said it was OK? Do these local yokel's really think they know more than the engineers with the state?
I think we will soon see a D&D on the corner, Paying property tax, providing jobs, giving the town its part of the states meal tax and sending a message to Plifka and certain planning board members that the days of back room dealings and good old boys looking out for each other is over.
and before you start whining about it being minimum wage jobs what do you think people at Kulicks earn?
How much in tax revenue would this create? Would we insure costs for the added services? Did the selectman offer a tax break to open a dunkin donuts?
Think long and hard what you want our downtown to look like. Does a few cents on your tax bill make it time to make the donuts?
It would offer more Tax revenue then a vacant empty lot does. And I think on that corner a modern D&D would look just fine, we have a rite aid across the street and Plifkas Sunoco on the other side.
How our downtown looks? lets see low cost baby factory, Mister Mikes, empty deteriorating restaurant, The old ugly Amarosa block, Mr. G's, Chinese take out is this what you are referring to?
What downtown? People hanging out in their pajamas, low income housing, empty pizza shop, apartments that look like they're falling down, expired food store, Give me a break. Real attractive!
812I have no objection to a Dunkin Donuts (though we don't need one to add to the obesity rate in town), but I do to another gas station. That is outrageous with 3 already in town, and Northfield to our south doesn't even have one. In spite of what the State says is "safe", that is a very busy corner and more comings and goings will be dangerous.
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