CONCORD, N.H. — After taking testimony for nearly three hours, a hearing examiner for the New Hampshire Department of Transportation suspended a discussion about whether crews will remove a traffic signal on Route 119 in Hinsdale, N.H.
The Thursday morning online hearing was called after Deborah George, the owner of George’s Field, a shopping center that at one time hosted a Walmart and now hosts a Runnings, contested the issuance of a driveway permit for the center. Her attorney, Peter Cowan, of Sheehan Phinney, contended that the Department of Transportation did not follow policy when it conditioned the permit on the removal of the traffic signal that has stood flashing since Walmart left the site nearly a decade ago.
In fact, Cowan argued, DOT performed “an end run around” the policy to avoid having to listen to the town about why they shouldn’t remove the light.
“The decision District 4 made had the effect, whether intentional or not, of causing the department to not issue notice to the town,” said Cowan.
Cowan noted that DOT did this because when Walmart left the site in 2011, a decision to remove the light was received with so much resistance from the Board of Selectmen and other town residents that the state converted the light to a flashing signal.
Cowan also noted that in 2012, Bill Lambert, the administrator of the Bureau of Traffic, told the town the light would remain at the intersection “indefinitely.” But Lambert said during the Thursday hearing that when he said “indefinitely,” he meant in flashing mode only while George searched for a new tenant.
Lambert also said the town did receive notification about the recent recommendation to remove the light because it got a copy of the driveway permit. Lambert said if a light removal is a stand-alone action, then there is a public notification process, but in this case, the removal was part of a driveway permit. This process was a first for the state, he noted, and, he added, the typical light removal process was not necessary because the signal is considered a flashing beacon, not a traffic control device.
When Runnings signed a lease in 2017 to occupy the building that stood empty for about five years, George was notified she needed to file for a new driveway permit because of “a change of use.”
Cowan argued that there was no change of use because one retail operation was replacing another.
Kevin Belanger, the person in the District 4 office that issued the permit, argued DOT wasn’t referring to a change in use of the center, but instead a change in use of the driveway.
In 2017, Belanger reached the conclusion that a signalized intersection wasn’t warranted because Runnings doesn’t generate the same level of traffic as a Walmart. But because of the increase in traffic over five years of vacancy, it signified a change in the use of the driveway, which required a new permit, said Belanger. In August 2018, Belanger told George her driveway permit may no longer be valid.
During the Thursday hearing, Belanger expressed frustration that several times he had requested a traffic study from George and never received it, eventually having to consult with the commissioner of DOT about how to proceed. Belanger did not say what Commissioner Victoria Sheehan said to him, but the driveway permit was issued in October 2019. Belanger said at the time he had to use his “gut feeling” after talking with engineers because he was not provided with the traffic study.
“I was concerned they were about to open a store and we weren’t provided the data we had asked for to evaluate the safety of this intersection,” said Belanger.
Belanger also admitted to writing in an email to Lambert that he had been “overly patient” with George over the years about the traffic signal.
“He was patient for 10 years,” said Belanger, saying later, in his opinion, keeping the lights or upgrading them to full operation was “a waste of money.”
When he finally received the traffic study, he said, it supported his “gut feeling” that the increase in traffic didn’t even warrant a flashing light, never mind a traffic control light.
Kathleen Mulcahey-Hampon, senior hearing examiner for DOT, seemed to offer a resolution during the lunch break.
During a discussion with Cowan and Assistant Attorney General Allison Greenstein, on behalf of DOT, Mulcahey-Hampon said according to her reading of the permit, the traffic light was not actually a condition, but a note.
“I don’t see that statement as conditioning the permit on removal of the light,” said Mulcahey-Hampon.
“It’s not framed as a condition,” agreed Greenstein, saying it appears to only be informing the owner of the property that the signal light is coming out.
After the lunch break, Cowan and Greenstein indicated they had a discussion about “possibilities” but it would take 30 days to hash them out.
“Some talking is beneficial,” said Mulcahey-Hampon, who told the attorneys to report back in 30 days. “If it doesn’t work, I’m here and can be available.”
Bob Audette can be contacted at firstname.lastname@example.org.