Fight over Winchester Dunkin' Donuts proposal in two courts

By Meghan Foley Sentinel Staff

WINCHESTER — The proposal to build a combined convenience store, gas station and Dunkin’ Donuts at the corner or Routes 10 and 78 is back in court — or more like courts.
Cases involving the project are moving forward in both N.H. Supreme Court in Concord and Cheshire County Superior Court in Keene.

The Supreme Court case is an appeal by the project’s developer, S.S. Baker’s Realty Co., of Superior Court Judge John C. Kissinger Jr.’s decision earlier this year to uphold the Winchester Planning Board’s July 2012 denial of the project.

While S.S. Baker and the town of Winchester were the main parties in the Superior Court case, Kulick’s Inc., which operates a grocery store and gas pumps at 30-80 Warwick Road (Route 78), was an intervenor in the litigation.

S.S. Baker filed the Supreme Court appeal on May 17, and the court accepted it on June 13. As of Friday afternoon, the case was still pending, with S.S Baker’s filing its brief on Oct. 10, and the town’s brief due on Nov. 27.

The Superior Court case is an appeal by Kulick’s of the planning board’s July 15 approval of the project based on a second set of plans filed by S.S. Baker’s in June. Kulick’s is also appealing the zoning board of adjustment’s Aug. 29 decision that the special exception it granted in February 2012 for a drive-through window for the Dunkin’ Donuts was still valid.

Kulick’s filed its appeal of the planning board’s decision on Aug. 8, and its appeal of the zoning board decision on Sept. 19. Both cases have since been consolidated.

Debate about the construction of a combined convenience store, gas station and Dunkin’ Donuts at 4 Warwick Road has been ongoing for over a year.

S.S. Baker’s is proposing to build a 3,500-square-foot building on the 1.19-acre site. The building would include a drive-through around back for the Dunkin’ Donuts, three fuel pumps covered by a canopy on the Route 10 side and 25 parking spaces.

The firm is managed by Teofilo Salema, who owns other Dunkin’ Donuts stores in the area.

The project first came before the Winchester Planning Board in April 2012. Board members initially rejected the project’s application because of concerns about traffic flow at the intersection, and that the project would overwhelm the site.

According to state law, a project can be refiled with the planning board as long as it’s different from the first version. S.S Baker’s did just that this year.

With the planning board approving the second version of the project, it’s unclear why the Supreme Court appeal about the first version is still pending.

In the meantime, Kulick’s, which is owned by Stanley S. Plifka Jr., is asking a Superior Court judge to declare S.S. Baker’s first site plan is the same as the second, and then reverse and remand the planning board’s approval of the second site plan.

The town is seeking to dismiss the suit, arguing the site plans are different. The town also argues that the special exception for the drive-through window is still valid because the clock stopped ticking on it when S.S. Baker’s appealed the planning board’s decision on the first application.

Meghan Foley can be reached at 352-1234, extension 1436, or mfoley@keenesentinel.com. Follow her on Twitter @MFoleyKS.

 Once again our Planning Board has erred, just like in they did when an appeal was filed in the Van Dyke matter. Once the appeal to the Supreme Court was filed and accepted, the board no longer had any jurisdiction over the matter; they should never have accepted, nor ruled on his second application. same old crap by the same old people; resulting in more lawsuits and court costs .. When will Winchester's voters wake up ?