A court has upheld the Winchester Planning Board’s approval of plans for a gas station, convenience store and Dunkin’ Donuts at a major intersection in town.
A neighboring business, Kulick’s Market on Warwick Road, had appealed the board’s decision, citing concerns about traffic and safety.
The appeal was the latest chapter in a saga that has involved multiple planning-board proceedings and two trips to the N.H. Supreme Court since 2012.
Judge David W. Ruoff of Cheshire County Superior Court denied the latest appeal in an order dated May 1 and released Wednesday.
Ruoff wrote that he “finds the Town’s decision to approve the plan was appropriate, lawful and amply supported by the information in the record,” including evidence about traffic impacts.
Kulick’s owner Stanley S. Plifka Jr. declined to comment on the order, and his attorney, Kelly E. Dowd, said only that they are considering their options.
It’s unclear when construction would begin. Gary Kinyon, an attorney for the company developing the project, said he and his client “were pleased with the decision of the court,” but declined to comment further.
A party in a civil case has 30 days to appeal a decision to the state Supreme Court, according to the Superior Court’s rules of procedure.
S.S. Baker’s Realty Co., LLC, is hoping to build a gas station and convenience store with a drive-thru Dunkin’ Donuts at 4 Warwick Road, a site at the intersection of Routes 10 and 78, also known as Warwick Road.
Teofilo Salema, the company’s manager and registered agent, has other Dunkin’ Donuts franchises in the Monadnock Region.
The planning board approved the plans in January. Kulick’s filed an appeal the next month.
The proposal has a complicated backstory. The planning board rejected an earlier version of it in 2012, prompting an unsuccessful court appeal from S.S. Baker’s. Meanwhile, in 2013, the board approved a revised plan — which Kulick’s in turn appealed. The Supreme Court denied that appeal in 2016, which would have allowed S.S. Baker’s to develop the site.
But the company instead returned to the planning board with a modified plan, having acquired an adjoining property that allows the building to be expanded and placed farther back from the road. That was the plan the board approved in January.
In its February appeal, Kulick’s argued that traffic turning left into the property’s driveway from Route 10, and vice versa, will create safety issues. An attorney for Winchester, however, argued at an early April court hearing on the appeal that the planning board had reviewed detailed evidence and concluded the driveway would be safe.
Ruoff, in his order, noted that a challenge to a planning-board decision must clear a high bar — the appealing party must show that the board misapplied the law or came to an “unreasonable” decision.
“In this case, Kulick’s has not sustained that burden,” he wrote. “In fact, the record establishes that the planning board carefully considered all the evidence before it when assessing the site plan and its impact on traffic.”