Court Finds in Favor of Planning Board Decision

HAMPSTEAD – Rockingham Superior Court Judge N. Williams Delker has upheld the Hampstead Planning Board’s conditional approval of Depot Development, a combination gas station, convenience store and Dunkin’ Donuts plaza on the corner of Main Street (Route 121) and Derry (Hampstead) Road.

In his decision, he said the Planning Board had reached a “reasonable” conclusion. Justice Delker reviewed the arguments of the 11 abutters who filed the appeal and the responses from the developer. The development in 2001 was denied by the Planning Board, and its decision at that time was upheld by Superior Court.

Justice Delker states that “Though the project (2012) was at the same location and involved identical businesses, the proposed building itself has undergone three important changes: (1) it has gone from a two story to a one-story structure; (2) though the footprint has increased slightly, its overall square footage has been reduced significantly; and (3) its design will be similar to that of a Boston & Maine Railroad building.”

He said these changes, among others, show “that Depot’s changes to their second application were responsive to the reasons for the denial of their initial application and thus there was a sufficient change in circumstances to warrant the Board’s consideration of the application.”

The judge dismissed the developers’ contention that the petitioners lacked standing. He then dismissed the petitioners’ argument that board member Proctor Wentworth should have disqualified himself. Finally, the judge looked at the petitioners’ main concern – traffic and safety – and after a lengthy review of the petitioners’ complaints about the traffic study, determined the petitioners had not offered any concrete proof that the study was inaccurate.

He said Depot Development has taken appropriate measures and met the standards set by the New Hampshire Department of Environmental Services and made adjustments to meet New Hampshire Department of Transportation standards. Scott Hogan, attorney for the plaintiffs, released the following statement on the decision:

“Obviously, we are disappointed with Judge Delker’s decision. We knew it would be difficult to overturn a decision made by town officials, but for the sake of our families, our properties, and the hundreds of residents who also oppose this project, we had to try. Honestly, we never thought we’d be facing this issue again, having already fought and won this battle 10 years ago. The difference this time, however, is that we did not have the support of our Planning Board.

“We continue to believe that this project does not meet zoning requirements in numerous ways,” the petitioners’ said. “And we can’t help but feel that the Board failed the town’s residents and us by not fully investigating all of the safety concerns that were raised, especially in regard to the traffic at the intersection of Main Street and Derry Road. We still firmly believe that a business with three high-intensity, high volume uses that operates from 5 a.m. to 11 p.m. (with 24 hour gas pumps) is inappropriate in an area surrounded by residential properties.”

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