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Joyce Endee

Family Dollar Store Ok'd with conditions

October 20, 2011
LANCASTER — After a three-hour meeting last Wednesday, the Planning Board voted 4 to 1 to approve the site plan for a 9,180-square-foot Family Dollar Store at 181 and 185 Main Street (Routes 2 and 3), which paves the way for two historic houses on the site to be razed.

Both lots are zoned commercial.

Also, last minute concerns raised by abutters about the noticing of the meeting may signal a legal challenge to the ruling.

Vice chairman Mark St. Pierre, members Claude Reed, Steve Young, and Dan Doolan voted "yes," and Mark Frank voted "no." Chairman Justin Carter does not vote unless there is a tie. Doolan and Frank are alternates who filled in for absent or recused members or for those not present at the previous month's meeting.

One legal challenge, described at the end of this article, was made to meeting itself.

Dan Bouchard of Horizons Engineering of Littleton, representing developer JDH Capital LLC of Charlotte, N.C., presented an overview of the proposed an updated plan for what would become 1.41 acres, including modifications to the drainage system and storm water detention pond, a four-slot reduction in parking to provide 32 10- by 20-foot spaces, removal of public parking spaces along Main Street and a new alignment for truck entry and exit for 67-foot-long tractor-trailers (WB-67) bringing once-a-week Family Dollar shipments. Both historic houses (both are well over 50-years-old), would be torn down to clear the site for the retail store.

Jay Poulin of Berlin, an engineer at H. E. Bergeron (HEB) Engineers of North Conway that was contracted by the town to conduct a third-party peer review at the developer's expense, detailed some of the revisions the firm had recommended, all of which were incorporated into the plan. Poulin said that 67-foot-long T-Ts would be able to turn either left or right when exiting the lot onto Main Street without impinging on the opposite lane. Poulin said that a truck that size could go in and out of the lot without either going through parking spaces or over curbs. He later did not render an opinion on whether he considered these delivery arrangements to be safe.

McKee Inn resident Mary Shannon said that Family Dollar is a "big powerful company" that is forcing its way into downtown despite not being wanted by the people who pay property taxes. "Do your job," she urged Planning Board members. "You're the only thing that stands against money and power."

Emily Cowan said she was concerned for the safety of children, other pedestrians and drivers on Main Street. Ann Hawthorne, Saul Stephan, and abutter Allan Ryder also had concerns.

Bouchard also displayed a rendering in color as board members had requested at the Sept. 14 meeting. The front façade has been changed to feature mullions — three across and four down — in the previously proposed large windows, that he said were similar to those at Shaw's supermarket. Six-inch clapboards and brick, plus a gable end, would face the street, buffered by landscaping, Bouchard said. Between 70 to 75 percent of the site would be covered with impervious materials, and 25 to 30 percent would be left "green." The on-site storm drainage system is designed to meet the Best Management Practices (BMPs) now promoted in three manuals distributed by the state Department of Environmental Services that incorporate research done at UNH.

Board member Hoey proposed that the installation of a six-foot-high protective fence around the detention pond be required as a condition to keep children safe. The engineering report states that the pond would hold up to three-and-a-half feet of water in a 100-year flood. Hoey also urged that a maintenance plan be required as a condition of approval. Board member Young proposed as a condition that all NHDOT and other state agency permits be in place. The board voted to approve these recommendations as conditions.

Board member Frank then spoke at length, reading sections of the town's Site Plan Review Regulations, adopted in 1991 and most recently amended in 2002. He detailed his concerns about traffic safety, especially regarding very large trucks backing up inside the retail store's parking lot. Frank emphasized that he believes that the wording "shall" required the board to turn down the Family Dollar Store application.

Deaths could result from "intermingling" cars and pedestrians with big delivery trucks that will have "to back around a corner," he said. An exclusive loading area at the back of the store could have been worked out with the owners of the Rite Aid store, Frank said. As the plan is proposed, however, a truck backing up in a "blind" area could run somebody over, he said. The Family Dollar could have found a bigger piece of land on which to build a store.

"A person is going to get whacked," predicted Frank, adding that it could be "somebody's mother."

Frank moved to deny the Family Dollar store application, but his motion received no second.

Young then moved to accept the application with conditions and Doolan seconded the motion.

Working from a list prepared before the meeting, Frank proposed a number of additional conditions, most of which the board accepted. These conditions include: an outside-a-truck spotter to direct drivers of long trucks, plus placement of traffic cones to mark the area; providing a quarterly report to the town that the internal drainage system is working, plus a $5,000 bond; screening, plus a restriction on the decibel level of HVAC noise at abutters' property lines; no truck idling before 7 a.m.; no lights other than security lights until 30 minutes before store opening and after its close; and an opportunity for the Lancaster Historical Society to compile a photographic record of the two houses and to remove artifacts or other tangible items for documentation. Construction activities would be restricted to take place from 7 a.m. to 6 p.m.

Board members learned of a legal challenge to the meeting being held as they sat down at their chairs but made no comment.

Abutters David and Lisa McCullough, who own property at 5-7 Railroad Street, and George "Skip" Sansoucy, who owns the Old Court House at 279 Main Street, objected to the board's acting on the site plan application before a properly noticed public hearing was held on what they termed "substantial revisions" to the grading and drainage and vehicular access made after the close of its Sept. 14 hearing and meeting. Attorney Jed Callen of Baldwin & Callen, PLLC, of Concord on behalf of his clients pointed out that the public participation portion of the Sept. 14 public hearing had been closed and only the deliberative portion continued to that evening. Furthermore, he noted, there had been no opportunity to review the revisions, based on the third-party review undertaken by HEB that resulted in an 80-page report.

"My clients have not had the statutorily mandated notice or opportunity to review this new material," Cullen wrote in a letter the day of the meeting. The law, Cullen pointed out, states that procedural defects by the Planning Board that create a serious impairment of the opportunity for notice and participation… "shall result in the reversal of a planning board's action."

Planning coordinator Ben Gaetjens-Oleson noticed the meeting as both a meeting and a hearing, however, and sent certified letters to abutters, alerting them to the hearing, he said in a later telephone interview.

Martin Lord & Osman
Salmon Press
Varney Smith
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