Hurley might be getting a little closer to having a drive-thru Dunkin’ of its own. Last week, the Town of Hurley lost an appeal it made after a lower-court ruling threw out the Hurley Planning Board's denial of site plan approval for the proposed Dunkin’ drive-thru for a site on Route 28.

On July 6, a three-judge state appellate court panel ruled that the town planning board’s reasons for denying a site plan approval application from Southern Realty and Development LLC were insubstantial. The court order means the town planning board will have to reconsider the plan.

The decision disagreed with the Ulster County Supreme Court Judge Kevin Bryant’s June 27, 2022 ruling that nullified the board’s site plan denial on the basis that the a meeting held between some planning board members and developers’ representative had violated state Open Meeting Laws in its process. The decision was made as a result of the Dunkin’ developers filing an Article 78 motion in state Supreme Court seeking to overturn the planning board’s decision.

According to the appellate court’s decision, “the [planning] board clearly failed to set forth its decision and reasoning in a written resolution,” but the minutes of the meeting that recorded the vote on the application provided “adequate indicia of its reasoning for denial.”

“Nevertheless, based upon our review, we find that the board's various justifications for denial … are unsupported by the record,” the court wrote.

In a statement to Kingston Wire, Town Supervisor Melinda McKnight wrote the following: “The appeal [of Bryant’s ruling] was filed in an effort to correct mischaracterizations made by the New York State Supreme Court in Ulster County about the Town of Hurley, including that the town failed to provide certain documents. The Appellate Division, in its July 6, 2023, ruling, delivered a rebuke to the lower court about those mischaracterizations. The appeal was not about the project itself, which deserves consideration within the parameters of Hurley laws defined in the Town Code."

During its consideration of the project, planning board members claimed that the Dunkin’ project’s proposal to widen a shoulder at the intersection of Routes 375 and 28 would cause “traffic problems,” despite the proposal’s state Department of Transportation approval and studies from Southern Realty’s consultant that concluded that traffic conditions would not change. In addition, the court found that the board sloppily performed a study that overestimated potential drive-in queues.

“Our assessment of the record demonstrates that the traffic-related concerns were adequately addressed by petitioners and the ensuing reasons relied upon by the board in denying [Southern Realty and Development’s] application were conclusory and unsupported,” the decision read.

According to the appellate court, a virtual or “gateway” meeting about the application with representatives of the proposed project and members of the Hurley and Ulster County planning boards highlighted underlying motivations for denying the application.

“The board’s decision appears to have been in response to local public opposition, evidenced at least in part by the comment at the gateway meeting indicating that a ‘mom and pop’ restaurant would be more desirable than the project and would have an easier permitting process,” the court wrote. “It is well established that such concerns are not a proper ground upon which the board may base the denial of an otherwise permitted use.”

Last week’s decision requires the planning board to continue proceedings with Southern Realty’s application. The town has not yet indicated whether it will appeal the decision to the Court of Appeals, which is the state’s highest court. According to planning and zoning clerk Maggie Colan, the Dunkin’ application will be up for discussion at the board’s July 27 meeting.