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Planning Board approval for Family Dollar Store under appeal

November 16, 2011
LANCASTER — The approval granted on Oct. 12 by the Lancaster Planning Board to allow JDH Capital of Charlotte, N. C., to build a brand-new single-story 9,000-square-foot Family Dollar Store after tearing down two houses at nos. 181 and 185 Main Street is being challenged.

An appeal has been filed in Superior Court by attorney Zed Callum of Baldwin & Callen, PLLC, of Concord on behalf on behalf of abutters and neighbors Mary Snowman, George "Skip" Sansoucy, and Lisa and David McCullough.

The site plan used that evening as a basis for Board discussion and its subsequent decision was significantly and substantively different — a narrower buffer, fewer and larger parking spaces, and a redesigned infiltration pond with new maintenance plan — than the application and submitted plans that were available on Sept. 14 when the Board voted to close the public hearing and then to continue it for its own deliberations only, without further public input, Callum explains in an e-mail exchange.

"Despite that, the Board accepted significant technical changes to the Plans, some involving the pond, as late as the day of the Oct. 12 approval meeting, and others received late on Oct. 5," Callum writes. "This submission of new, changed plans required a new Notice of Public Hearing, and a new opportunity for the public to come in and copy or review the complete set of applications and plans to be voted on in advance of the hearing, and a full opportunity to be heard on the new plans at a duly noticed public hearing," the attorney explains. "This was not done, however, and indeed the newspaper and abutter notices stated that the hearing had been closed and that limited comments 'may' be permitted on changed plans, without stating that, whether, or when such plans might be submitted or could be reviewed by the public," Callum continues.

The attorney cites N. H. law (RSA 676:4, IV) which stats that the Court "shall" — rather than "may" — reverse a Planning Board approval if the procedure followed creates a "serious impairment of opportunity for notice and participation."

The thrust of these concerns were captured in a letter from Callum in a letter distributed to Board members at their places at the table, as well as the press and the town's Planning-Zoning Coordinator Ben Gaetjens-Oleson to alert them to various grounds for appeal.

Martin Lord Osman
Salmon Press
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