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.