Developer denied rehearing of Wellington Road drive-thru decision
Feb. 25—A Hillsborough Superior Court North judge has denied a request from a developer of a Wellington Road gas station for a rehearing, after Manchester zoning board members rejected his bid to add a drive-thru to the property.
The zoning board voted 3-2 last year to deny a special exclusion to allow the drive-thru at 55 Edward J. Roy Drive. A drive-thru is allowed in the B-1 zoning district if specific conditions are met.
Jack Nasr of Z-1 Express has said a drive-thru is necessary to find a coffee shop tenant, likely Dunkin' Donuts.
Neighbors who opposed the gas station development when it was approved in 2020 argued a drive-thru would add further pollution, noise and traffic.
Zoning board members rejected the request, saying the developer did not prove there wouldn't be additional hazards to the health, safety or general welfare of the public, after questioning a traffic engineer who said there would be little change in traffic to the site.
Attorney Roy Tilsley, who is representing Nasr's My Way Realty LLC, said the zoning board approved a variance for a drive-thru in the R-1B zoning district, located 170 feet from the nearest residence and one on Edward J. Roy Drive that is 208 feet from the nearest residence.
The station opened last September, without a drive-thru. The gas station has a full convenience store, including a "Beer Cave."
Last July, Nasr filed a 13-page lawsuit against the city to get the decision reversed, hoping a judge will grant the special exception or remand it back to the zoning board.
"In the wake of COVID-19 pandemic and changed customer habits, and following discussions with potential restaurant operators, petitioner determined that drive-through service would be necessary for the property to attract potential tenants for the restaurant space for which had been previously approved pre-pandemic," the lawsuit claims.
Part of the special exclusion includes "will not create undue traffic congestion or unduly impair pedestrian safety." The engineers used the Institute of Transportation Engineers handbook, which showed trip generation staying "nearly level" with previous plans without a drive-thru.
The board's decision also listed exhaust and noise as "detrimental to the general welfare of the abutting residential property."
Tilsley said his client is prepared to provide more information on traffic, pedestrian safety, noise and vehicle exhaust.
The board "elected to set aside expert information in favor of its own impressions of traffic in the general vicinity of the property," the lawsuit says.
In a decision dated Feb. 20, Judge N. William Delker wrote, "To argue that the Board must give the petitioner more opportunities to meet its burden after realizing that the Board will likely find it failed that burden is circular. Ensuring that the petitioner meets its burden is not the type of assistance the Board must provide."
Delker also wrote a rehearing is "not a matter of right, and may be granted by the (zoning board) when in its opinion good reason supports it," adding any new evidence should reflect a change in conditions after the original hearing or be evidence that was unavailable at the time of hearing — not evidence that the petitioner had available at the time but did not produce "due to a lack of preparation."
"The petitioner failed to present new evidence that could have warranted a rehearing," Delker wrote. "Indeed, the new evidence that the petitioner offered to present amounted to having a different expert, from the same firm as Peterson, speak about the same conclusions Peterson had made and the same ITE that he utilized."
Delker said the petitioner also didn't claim the board made any technical errors prior to voting.
"Instead, the petitioner merely contested the Board's questioning of the information presented at the public hearing and the Board's ultimate decision," Delker wrote. "Therefore, the Board acted reasonably when it denied the petitioner's rehearing with respect to the traffic congestion criteria."
