A judge heard arguments Tuesday over a proposed gas station and Dunkin’ Donuts in Winchester that, as he put it, has “been kicking around for seven years.”
In January, the Winchester Planning Board approved a plan for a gas station and convenience store with a drive-thru Dunkin’ Donuts at 4 Warwick Road.
The following month, a nearby grocery store and gas station, Kulick’s Inc., appealed the board’s decision in Cheshire County Superior Court. Kulick’s also unsuccessfully appealed the board’s 2013 approval of a prior plan.
“Our position with respect to this proposal has always been that we’re not opposed to the Dunkin’ Donuts being included, but we want it done properly,” Kelly Dowd, the attorney representing Kulick’s, said in court Tuesday. “And the main concern that we have about this current proposal is the traffic impact.”
Specifically, Dowd said his client worries that traffic turning left onto the property from Route 10, and vice versa, will create safety issues. He said the planning board should have required a concrete splitter island in the driveway, which would prevent left turns into or out of the property.
But Michael Courtney, Winchester’s attorney, pointed out that plaintiffs must meet a high bar to overturn a planning board’s decision. An appeal can succeed only if a judge finds the planning board made an error of law or an “unreasonable” decision.
“As the court knows, the standard of review for this planning board appeal is not whether the court agrees with the factual findings of the planning board, but whether there’s evidence in the record to support the board’s findings,” Courtney said.
He said board members relied on a “detailed traffic study” submitted by the developer, personal observations and other evidence. That included consideration of the splitter island, which the board did not deem necessary, Courtney said.
The judge, David W. Ruoff, did not immediately rule on the case.
The Warwick Road site is on the corner of the intersection of Routes 10, 78 and 119. It’s owned by S.S. Baker’s Realty Co., LLC, whose manager and registered agent, Teofilo Salema, has other Dunkin’ Donuts franchises in the Monadnock Region.
The procedural history of the Winchester proposal dates to at least 2012, when the town’s planning board rejected an application for the project. That prompted an appeal from S.S. Baker’s, which the N.H. Supreme Court rejected in 2014.
In the meantime, S.S. Baker’s filed a modified plan with the planning board, which approved it in 2013. Kulick’s — which had stood with the town during S.S. Baker’s appeal — then filed an appeal of its own, challenging the 2013 approval.
The state’s high court upheld the 2013 approval in 2016, clearing the way for S.S. Baker’s to develop the site.
But S.S. Baker’s instead returned to the board with a revised plan, after acquiring an adjoining parcel that allows the company to expand the building slightly and place it farther back from the road.
Kulick’s, owned by Stanley S. Plifka Jr., filed the current appeal after the planning board OK’d that plan in January.
On Tuesday, Dowd said the board prohibited left turns from the property onto Route 10 in its 2013 decision, but not in its latest approval of the plans.
Overall, the current plan is better than the 2013 one, Dowd said, but “the one thing that this plan doesn’t change is the traffic, the amount of traffic coming in.” He argued the board had “no reasonable basis” to drop the left-turn provision.
Gary Kinyon, the attorney representing S.S. Baker’s, said the new plan places the driveway 80 feet north of where it had been. That moves it farther back from the intersection and makes it safer for left turns, he argued.
Requiring only right turns could create traffic problems of its own, he added.
Allowing left turns, he said, “almost improves traffic flow, because of the fact that people aren’t gonna be making right turns out and then turning around to go back to the direction they want to go.”