Wednesday, January 22, 2014

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 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.


MIke Towne said...

Exactly the same situation you had with the Van Dyke mess. Another developer that wanted to overwhelm a piece of property he bought cheap.Another hand appointed ZBA that handed out waivers like they were candy at Halloween and ignored the law and the town's own regulations. Supposed plan changes; though they were exactly the same. Lawsuits filed in Superior Court which resulted in Sharra being reprimanded by the Court for illegal activity and the approval being overturned; only to have Sharra act as an agent for Van Dyke and have the board rehear the matter again and once again approve the application, despite numerous violations of wetland laws and destruction of neighboring properties.

More lawsuits and finally the DES, not the town, closing him down and revoking his permits. Only then did the Planning Board, still headed by Sharra, act and revoke his application. There was also a suit filed and accepted with the State Supreme Court, exactly like this case for the same violations of law .. Doesn't seem the town or it's hand picked boards have learned a thing, except how to waste tax payer dollars and play favorites.time to make some serious changes people or keep spending money. The legal budget has more than doubled in the past few years with these people playing favorites, when are you going to wake up?

Anonymous said...

Actually Mike no one is going to wake up. The dirty little secret behind this is the fact that Mr. Plifka had the opportunity to purchase the property and elected not to. Perhaps we all ought to mull that over. I have been in town for awhile and would like to get a decent cup of coffee and a gas receipt. Novel thought a gas receipt too keep track of expenses.

I may not care for Teo but he played according to the "rules." The other question is who's rules the towns or someone else's?

Mike Towne said...

Perhaps, from what I have seen in the past 7 years you're right. As far as Mr.Plifka purchasing that lot, why? What would you be preaching had he done just that and didn't build anything on it? Silly statement. As for a decent cup of coffee and a gas receipt, you have several choices in town or can make your own at home and all you need to do to get a receipt is ask, it's that simple. You people who think that Dunkin Donuts coffee is a must have no matter the consequences are something else. Why didn't Theo keep his business open up in Keene if it was so lucrative?
And please explain to all of us why we need to have another gas station within a hundred yards of two others and less than a mile away from a third? There's a lot more going on here than meets the eye or sees the light of day.

Anonymous said...

I would like to chime in. What's wrong with the fact Plifka should have bought the Hartley's house or when the house was moved bought the lot, if nothing else to protect his investment. he had the opportunity to improve down town just by placed a flower bed or a nice lawn which would add to his property while being more inviting to the town or put a DD in there. What's wrong with another gas station, competition is good to keep pricing down. Why is the price of gas on RT 10 the same all the way to Keene? Not enough competition!!!! Or do you like paying higher pricing?

No one should be allowed to leave the Hartley lot the way it was, As for a decent cup of coffee I enjoy DD coffee a lot. I would drive out of my way to get a cup of DD. If you think the Pisgah Diner or Mr. Mike's is a good coffee check again. Better check your taste buds.

Theo closed the DD in Wal-Mart Plaza because the cost, the owners of the mall wanted him to spend a bunch of money to remodeling the building. Theo felt it wasn't cost effective. Ask him. J&G does qualify to be called a gas station.

someone in the know said...

So according to you in order to stop competition business owners should spend thousands of unnecessary dollars buying up all of the surrounding properties to insure no other business or anyone else for that matter moves in. Then do nothing more to these properties than put in a nice lawn or flower bed and spend thousands more on taxes, is that right? Well as a business owner I can tell you for a fact, I would not do that,ever. Sounds like a really good way to waste your hard earned money and I'm sure this is practiced all over the country too. How many businesses do you own?
The previous owners should have been made to clean up that lot under the town's laws and should have been fined for not doing so and just because you don't like the coffee in town and are hooked on DD crap doesn't mean everyone in town agrees with you and/or can afford to pay their prices either.
As for gas prices being competitive just because there is another station on that corner, it's not going to happen. Just FYI it's the industry that sets the price and the state that sets the profit margins for owners to work within. Why do you think they are all the same give a penny or two here and there? As I said, I am a business owner. You really need to educate yourself on the subjects you talk about.
Looks like you are some kind of spokesperson for Theo seeing as how you have all of the insider info. I heard a little birdy contacted him and he got some insider info and a very cheap price on the lot and was GUARANTEED an approval if he bought it. He should have bought Pasquarelli's place and he'd be up and running by now without paying lawyers, court costs and others to get his approval.

Anonymous said...

I have know idea what kind of business you're running, probably not a convenience or grocery store. It would only make good business sense to protect your interest, that includes buying up property that had a potential to interfere with your profits. The Hartley house could have bought by Kulick Market for $19,000, A small price to pay, I'll bet Butch has paid a lot more in legal fees,

One more point FYI the price of gas is not set by some so called industry or state that sets the price. This is Ludacris, the price is set by demand.

By the way Theo is good businessman and neighbor who gives back a lot to the community. Ask anyone in Chesterfield how much Theo gives out in sponsoring Chesterfield Schools in soccer and basketball sports. Get your fact straight...

Anonymous said...


Anonymous said...

To the poster above who thinks gas prices are set by the demand for gasoline and not the industry and retail owners, here's some info for you.

Nice find for this guy Theo, a small lot for $19,000 on a busy corner in downtown Winchester, must have one hell-of-a-guardian angel looking over his shoulder.

Also concerned said...

We have 3, count them, three gas stations in town and certainly don't need another. Perhaps DD and gas station should go to Northfield, MA, just up the road where they DO NOT have any gas station. My guess is that Northfield wouldn't have them.

Anonymous said...

Theo is a good guy? Oh ok ! That's why he insults the the property owners of Winchester, telling them their property is wortless. why did he buy property here if our town is worthless. It's over use of the property plain and simple.