Hurley’s planning board has set August 24 as the date to hash out remaining issues with a proposed Dunkin’ drive-thru at routes 28 and 375. A state appellate court vacated the board’s denial of a site plan for the project.
Charles Gottlieb, attorney for John Joseph of Southern Realty & Development, insisted this was not a new application starting from scratch.
The site plan was back before the planning board after a ruling on an appeal from Southern Realty & Development remanded the project back to the town body for further deliberation.
“The charge now for this board is to take off, where we left off, being consistent with the court’s decisions. And certainly you have guidance from your attorney to do so,” Gottlieb said.
The deliberations needed to start from the January 5, 2022, memo of concerns issued by the town’s planning consultant, Nelson, Pope & Voorhis, Gottlieb contended.
“However, now we’ve received a new memo from Nelson and Pope, and it looks like we’re starting over,” he said. “There were only three remaining issues from Nelson and Pope’s 2022 memorandum. Now we have a new seven-page memo that is probably 90 percent new comments. Several of the other comments have already been addressed, which were identified by Nelson and Pope as being addressed in prior comments. And I know this because I painstakingly went through the last 18 months where this board reviewed the project.”
Gottlieb said the issues raised in the new memo about lighting, landscaping and drainage had already been resolved. “So we feel as though we are going around in circles,” he said.
The applicant, the seller, and a franchise agreement were under contract, he continued, “and any hindrance of those contracts and those agreements lands us directly back in court.”
Supreme court justice Kevin R. Bryant had ruled in June 2022 that the prices that led to the planning board’s January 10, 2022, rejection were “fundamentally flawed.” He cited the lack of a resolution outlining the reasons for denial, the failure to follow proper meeting protocol, and an application review that went more than a year beyond the limits in Hurley town code.
The appellate court upheld Bryant’s ruling.
“The board’s decision appears to have been in response to local public opposition, evidenced at least in part by the comment at the gateway meeting indicating that a mom-and-pop restaurant would be more desirable than the project and would have an easier permitting process,” the appellate court wrote. “It is well established that such concerns are not a proper ground upon which the board may base the denial of an otherwise permitted use.”
The planning board’s traffic concerns were similarly deemed “unsupported by the record.”
Bonnie Franson of Nelson, Pope & Voorhis wrote the newest memo to the planning board. “My attempt is to be as comprehensive as possible so we can get to the end goal here,” she said.
Among many concerns, Franson stated in her memo that no floor plans had been submitted that would “provide evidence that the interior space does not have a counter area or is open to the public.”
The applicant seeks a drive-thru only. Customers will not be permitted inside the 900-square-foot space.
Snow removal was another issue. The applicant has stated snow will be hauled off-site, Franson argued that was impractical.
Franson spent at least an hour at Thursday’s meeting working with the board through issues such as the fire code implications of having a single door that served as the employee entrance and exit and the loading area. They discussed how customers could get back into the queue if they discovered their order was wrong, and what color the base of the light poles should be.
The deliberations will continue August 24 at 6 p.m. at a special meeting dedicated solely to the Dunkin’ site plan.
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