After three years of drama and two court decisions, Hurley’s planning board voted 5-0 to give conditional approval to a drive-thru Dunkin’ at the corner of state routes 375 and 28 in West Hurley. Warwick-based Southern Realty & Development will replace a travel agency and Allstate insurance office at the site, which is on the opposite corner from a vacant lot that once held a gas station and garage.
At a rare morning special meeting, board chair Peter McKnight noted that the board members continued to have concerns about traffic and safety. But he said the board felt its hands were tied because of court decisions.
“The planning board had previously voted to disapprove this project almost two years ago, due to our concerns about the traffic and the potential for harm to the public should an accident occur in the vicinity …,” McKnight said. “All of us on this board continue to have public-health and safety concerns about traffic, particularly ingress and egress to the site at the intersections of routes 28 and 375, a junction that already suffers from suboptimal traffic safety conditions.”
A panel of appellate judges had held that the applicant had adequately addressed the traffic-related concerns. McKnight said. The planning board recognized its legal duty to abide by the law. It included about four pages of conditions the developer must meet in an 18-page resolution outlining the lengthy and complex history of the project, proceedings and litigation.
McKnight, vice chair Kathryn Kiewel, Karl Brueckner and Dennis O’Clair and alternate Mitch Cohen voted in favor. Members Debbie Kossar, Griff Liewa and Diana Cline were absent. McKnight, Brueckner and Cline had been on the board when the site plan was denied, as had been Cohen, who was then chair.
Among the conditions, the Dunkin’ must be drive-thru only. Pedestrians or walk-up customers will not be permitted in the building or on the drive-thru lane.
No bicycles or electric bicycles will be permitted. Only modes of transportation registered with a department of motor vehicles will be allowed.
Other conditions dealt with landscaping, garbage removal and snow removal.
The planning board had attempted to prohibit preparing of food on-site given the small size of the 900-square foot space, but the developer’s attorney, Charles Gottlieb. objected.
“Food items such as donuts, bagels, rolls, etc., will not be baked on the property,” the condition stated.
Since a restaurant was a permitted use in the zoning district. Gottlieb argued that the planning board did not have jurisdiction over internal business operations.
“I understand, maybe the concern is related to, well, what happens if we have customers inside, what happens if we start doing a full-service restaurant,” Gottlieb said. “That really shouldn’t be a concern, because if that happens, the whole project design changes. And that instance is covered by Section Six, whereby if any operations changed, then we have to come back for amended site-plan approval. I just want to avoid as much as possible going back to the court if there is a condition that’s not consistent with the appellate division’s opinion.”
The board agreed to remove that condition. Many of the food items, although delivered to the location pre-baked, must be reheated or thawed to be edible. Also, for example, a customer may request a bagel be toasted.
The appellate court had ruled that the planning board, bowing to public opposition, had erred by ignoring state Department of Transportation (DOT) approval of the site traffic flow.
Governmental meetings are almost always scheduled for evenings. Timing and scheduling had necessitated a meeting in the morning, said planning clerk Maggie Colan. An insufficient number of members were able to attend to make a quorum on August 24. Colan felt it was important the chair attend the meeting. Given the requirement of a week’s notice, the morning meeting was the only time he was available until several weeks later.
The applicant did not want to wait.
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