Agenda - Planning Commission - 06/05/2003

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Page 4--May 10, 2003 Superstore and anothe.~r retail store. Konover retained Sitelines P.A., an engi- neering and planning f'mn, to secure the necessary permits, and Eaton Traffic Engineering to study the traffic considerations. The planning board retained DeLuca-Hoffman Associates Inc. to review and consider information and plans coming from Sitelines and Eaton Traffic Engineering. The planning board conducted a series of 14 meetings over 14- months. At one meeting, DeLuca-Hoffman opined there would be no safety or operational concerns, but Eaton of Eaton Traffic testified people exiting Arby's would have "incredibly long delays" turning left from the access driYe during peak traffic hours. On Nov. 6, 2001, the board approved the final subdivision with certain contingencies concerning road improvements, restrictions, and requirements. In its decision, the board submitted a written finding that' the' project "would not cause unreasonable highway or public road congestion or unsafe condi- tions with respect to use of the highways or public roads existing or proposed." Konover also applied for and received a traffic movement permit from the Maine Department of Transportation (MDOT). Here, MDOT concluded there was no reason to modify its permit decision. The Thackers appealed both of these decisions, and the lower court al- fumed the decision. The Thackers again appealed, arguing the Board erred in approving the project because the development would prevent vehicles from making left turns from the restaurant access drive during peak hours. The Thackers also noted patrons would be forced to exit through nearby bank ser- vice road. DECISION: AtT'med. The court upheld the board's decision. Substantial evidence supported the board's decision that the development would not cause any highway or public road congestion or unsafe conditions. The court pointed to 14 meetings and considerable engineering studies. The record also reflected that access leading from another retailer through the bank property was a public access. This was a private service road dedi- cated to public use. The Arby's access road was in the vicinity of the development, but was not adjacent to it. Thus, MDOT did not err by not examining the effect of the development on the Arby's. Since the Arby's access drive constituted an "en- trance and exit," 1VLDOT was not required to perform a capacity analysis. Citation: Thacker v. Konover Development Corp., Supreme Judicial Court of Maine, No. Ken-02-393 and Sag-02:.402 (2003). see also: Langley v. Maine State Employees Assoicarion, SEIU Local 1989, 791 A.2d 102 (2002). NOW RENEW your subscription: ONLINE at www. quinlan.com 442