Legal battle with Dunkin’ Donuts continues

By Meghan Foley Sentinel Staff

WINCHESTER — Former adversaries are now allies as the legal battle over a proposed Dunkin’ Donuts in Winchester plays out in court again.
In March 2013, the developer of a proposed convenience store, gas station and Dunkin’ Donuts in Winchester was in Cheshire County Superior Court in Keene arguing to Judge John C. Kissinger Jr. that he should overturn the planning board’s denial of the project.

Joining the town in defense of the lawsuit was Kulick’s Inc., an abutter to the proposed project.

On Tuesday, the developer, S.S. Baker’s Realty Co. was on the other side of the aisle — and aligned with the town of Winchester — arguing why Kissinger should uphold the planning board’s decision made in July 2013 to approve the project.

Kulick’s, now in the position of being the plaintiff, was fighting against the approval.

During the roughly hour-long hearing, attorneys argued whether the the 2012 and 2013 project plans submitted by S.S. Baker’s were different enough to allow the Winchester Planning Board to accept and then approve the later plan.

Regardless of who is on which side of the case, the fate of the project is once again Kissinger’s hands. He has taken the case under advisement, and will issue a decision at a later date.

Since 2012, S.S. Baker’s, which is based in Keene, has sought to build a roughly 3,500-square-foot commercial structure at 4 Warwick Road in Winchester. The building would house a convenience store, gas station and Dunkin’ Donuts with a drive-through lane.

The controversial project was the subject of a lengthy public hearing leading up to the planning board’s July 2012 denial of the plan.

S.S. Baker’s appealed the matter to Cheshire County Superior Court, which upheld the planning board’s decision in April 2013. The firm has since appealed the case to the N.H. Supreme Court, where it was accepted in June 2013. That appeal is still pending.

In the meantime, S.S. Baker’s made some changes to the project and then filed a second site plan review for the project with the Winchester Planning Board in June.

Those changes included reducing the size of the building by 150 feet, removing one parking space, making room for 11 cars in the drive-through lane and not allowing vehicles leaving the property to make a left turn onto Route 10, which runs perpendicular to Warwick Road (Route 78).

According to state law, a developer can refile a project that has previously been denied by a planning board as long as it’s substantially different from the first.

In July 2013, the Winchester Planning Board approved the project, 6-1.

Following the board’s decision, Stanley S. Plifka Jr., owner of Kulick’s Inc., asked the Winchester Zoning Board of Adjustment to rehear, reconsider and reverse the planning board’s decision.

Plifka operates a grocery store and gas pumps at 30 Warwick Road under the Kulick’s name.

The zoning board denied Plifka’s request, 4-1, in August 2013. He then appealed the planning and zoning boards decision to Cheshire County Superior Court in September of that year.

On Tuesday during the court hearing, Attorney Kelly E. Dowd, who is representing Kulick’s, said Kissinger should reverse the planning board’s decision because the board didn’t follow state and local laws in approving the project.

“This is a textbook case of how a planning board shouldn’t operate,” he said.

There weren’t enough changes made to the project plans from 2012 version to justify the board accepting the 2013 version, he said.

Additionally, the traffic study and stormwater management plans used submitted with the 2012 plans were also submitted with the 2013 plans, he said.

Dowd said the board also illegally granted two waivers for the project, as S.S. Baker’s didn’t show that it would face unnecessary hardship if the waivers weren’t granted. The waivers dealt with landscaping and removing a vegetative buffer on the 1.19-acre property.

Attorney Matthew R. Serge of Concord, who is representing Winchester, and Attorney Gary J. Kinyon of Keene, who is representing S.S. Baker’s, both argued that the second application had enough consequential changes to allow the planning board to legally accept and act on the plan.

“There is nothing inappropriate about the board considering this again in light of the changes, and this time approving the application,” Serge said.

The board also granted the waivers properly because without them S.S. Baker’s would have faced a hardship, he added.

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

The "hardship" is a direct result of S.S.Baker's being greedy and attempting to overwhelm the proposed site. It's the property that creates the hardship; not the proposal. Once again, a controversial decision by an appointed board is costing the town thousands of dollars.



An area variance is the most common type. It can be requested by a builder or landowner when an odd configuration of the land, or sometimes the physical improvements (structures) on the land, requires a relaxation of the applicable regulations to avoid denying the landowner the same rights and use of the property enjoyed by owners of neighboring properties. A textbook example would be a house built on an oddly-shaped lot. If the odd shape of the lot makes it onerous for the landowner or builder to comply with the standard building setbacks specified in the code, a variance could be requested to allow a reduced setback. Another would be a house built on a sloping lot. If the slope of the lot makes it onerous to comply with the height limit—typically due to the way the municipality's code requires height to be measured—then a variance could be requested for a structure of increased height because of the special conditions on the lot.

In this case the proposed store, gas station with islands and a drive thru Dunkin Donuts overwhelms the lot

A use variance is a variance that authorizes a land use not normally permitted by the zoning ordinance.^[2] Such a variance has much in common with a special-use permit (sometimes known as a conditional use permit). Some municipalities do not offer this process, opting to handle such situations under special use permits instead. Grant of a use variance also can be similar, in effect, to a zone change. This may, in certain cases, be considered spot zoning, which is prohibited in many jurisdictions.
In either case, the variance request is justified only if special conditions exist on the lot that create a hardship making it too difficult to comply with the code's normal requirements. Likewise, a request for a variance on a normal lot with no special conditions could judiciously be denied. The special conditions or hardship typically must arise from some physical configuration of the lot or its structures. The financial or personal situation of the applicant normally cannot be taken into consideration. Under most codes governing variances, approval of the variance must not result in a public health or safety hazard and must not grant special privilege to the property owner. In other words, when a variance is granted, any other property owner with similar site conditions should be able to obtain a similar variance; this criterion is often addressed by citing precedent.

There are no conditions on the lot that make it too difficult to comply with code other than the proposed structure and use is just too much for the lot. There is no precedent for this variance to be granted either and it also creates a health and safety issue for the neighbor that abuts this lot.