Court Denies Reconsideration of Depot Development Decision

HAMPSTEAD – The petitioners in the Rockingham County Superior Court case of Carlos Paz et al versus The Town of Hampstead Planning Board filed a motion for reconsideration of Judge William Delker’s June 10 decision, which upheld the Planning Board vote to approve the Depot Development application and site plan. But Paz said Tuesday that the Court denied the reconsideration request.

Paz said he did not know whether they would pursue the matter with the state Supreme Court.
In his original decision, Judge Delker found the Planning Board’s decision “reasonable.”
The proposed Depot Development includes a combination gas station, convenience store and Dunkin’ Donuts plaza on the corner of Main Street (Route 121) and Derry (Hampstead) Road.

The petitioners, through their attorney, Scott Hogan, contended that Judge Delker “overlooked or misapprehended” various points of law. The petitioners request for reconsideration was based on the following points:
• Evidence that the subject intersection is still ranked as either the most dangerous or tied as the most dangerous intersection in Hampstead.
• Evidence that traffic volumes on the subject roadways have increased or are consistent with conditions that existed when the project was previously denied, despite the under-represented volumes presented by the applicant.
• Evidence that the three businesses, which are each large traffic generators, have an increased square footage over the design that was previously denied by the board.
• Evidence and testimony establishing the residential and historic character of the neighborhood and surrounding area, and the ways in which the appearance and operation of the proposed facility is inconsistent with that character.
• Evidence that the proposed facility would diminish the value of surrounding residential properties.

The motion for reconsideration brings up the safety issue of the intersection and the fact it would be negatively impacted by the three high traffic volume businesses planned. The motion also raises the idea that the only change between the current proposal and the one denied a decade ago is the proposed building is now one story and made to look like a railroad station. The petition notes the applicant stated that the retail space on the second floor in the original plan would not have generated any significant traffic, thus while removing it reduced the overall square footage, the actual footprint was increased.

The petition asked the court to grant the Motion for Reconsideration and grant such further relief as the Court deems just. The town’s attorney, Barbara Loughman of Soule, Leslie, Kidder, Sayward & Loughman, filed an Objection to the Petitioners’ Motion for Reconsideration. Loughman said “no new material issues of fact or of law” were presented.

Furthermore, she said, “Petitioners are asking this Court to substitute its judgment for that of the Planning Board, there being evidence in the record to support all of the Court’s legal and factual conclusions.

The abutters issued the following statement regarding their motion for reconsideration.
“We have filed a motion to reconsider because we continue to maintain that this development has significant detrimental issues, including, among many others, the fact that it does not meet zoning requirements (e.g. the building back and service area facing a road, pgs. 123 of Zoning Regulations regarding performance standards for C-1).

In addition, we are concerned with environmental and traffic safety at this problematic intersection. These are town hazards and not simply abutter objections. We find that when people learn of the scope and specifics of this development they agree that the planning board did not live up to its legal responsibilities in approving this plan.”

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