Depot Crossing Abutters Appeal to Supreme Court

HAMPSTEAD – The opponents of the Depot Crossing project aren’t going away quietly. They are instead mounting a second appeal effort, this time to the state Supreme Court, and filed their appeal Monday, Aug. 12, the deadline to do so.

Their initial appeal in Rockingham Superior Court was dismissed by Judge N. Williams Delker. His decision on the abutters’ case, challenging the decision by the Hampstead Planning Board that conditionally approved Depot Development, stated that the Planning Board had reached a “reasonable” conclusion, and affirmed the board’s decision.

The proposed Depot Crossing development is a combination gas station, convenience store and Dunkin’ Donuts plaza on the corner of Main Street (Route 121) and Derry (Hampstead) Road. A decade ago, the Planning Board decision not to allow the Depot Crossing development was supported by the Superior Court. A new site plan went before the Planning Board with some changes last year.

The judge wrote 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.”

These changes, according to Delker, 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 abutters filing the appeal do not agree with Delker’s assessment that the new plan is materially different from the original plan and as such, the Planning Board’s decision should stand. At the time of the Superior Court dismissal of their appeal, their attorney, Scott Hogan, said they were disappointed. He added that he had not expected to be back a decade after the first fight over this project, doing it again.

“The difference this time, however, is that we did not have the support of our Planning Board,” he said. “We continue to believe that this project does not meet zoning requirements in numerous ways. 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 makes it inappropriate in an area surrounded by residential properties.”

The plaintiffs are still fighting the same issues as the first time around. Safety remains a major concern, and they also say that important issues that should be considered are being ignored. The abutters are hoping the issues of material difference, safety and the town’s following the correct process will be reconsidered at the Supreme Court level appeal.

In addition to Hogan, Attorney Joshua Gordon is now representing the plaintiffs on the appeal.

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