The newspaper headline sums it up: “Judge: Town is right; Rite Aid is wrong.” Citizens in the tiny town of Henniker, New Hampshire have beaten the Rite Aid company for the second time. Rite Aid, which controls 4,000 convenience stores and is one of the largest drugstore chains in America, had sued the town of Henniker in May of 1997, when the town’s Planning Board ruled against their site plan application to construct an 11,000 s.f. drive thru store on a corner lot on a key highway entrance into town. The case had attracted the attention of Nightline, which aired a half hour show about the Henniker battle in January of 1997. Rite Aid sued the town, saying the Planning Board’s decision was unreasonable, and that several board members were biased and prejudged the case. On May 26, 1998, Superior Court Judge Arthur Brennan ruled in favor of the town. Brennan ruled that the Planning Board’s actions were reasonable, and that in fact it was Rite Aid who “was substantially inflexible regarding the size of its building and the configuration of its site plan.” The court said that Rite Aid was entitled to develop a “cookie-cutter plan”, but the Henniker Planning Board was not “required to accept a plan solely because it can be shoenorned onto a lot.” Rite Aid had argued that because the land was zoned commercial, that the town had no discretion to deny their site plan. The court ruled that “a site plan may reasonably satisfy all the legal requirements of the local zoning ordinance…and still be subject to reasonable denial by the board.” Brennan said it was not enough for Rite Aid to meet the minimum requirements of the ordinance, and said local officials do not have to accept any provision of a site plan just because the developer’s ‘experts’ said it is reasonable or legal. “Board members are entitled to use thier own common sense and judgment,” the Judge ruled. The Planning Board denied the site plan on 17 specific grounds, ranging from placement of the dumpster and snow removal, to the fact that the “size, single level, flat roof, sloping lot and cleared view” made the project “neither harmonious nor compatible with the long-term use and enjoyment of the adjacent residential area.” The Board argued that the size of the building was “too intensive for the site” and did not allow adequate buffering of neighboring residential property. The Court agreed, noting that Planning Boards can consider “even purely aesthetic issues” and “harmonious and aesthetically pleasing development” as “proper subject matter for site plan review regulations.” Rite Aid argued that the town held them up to a higher standard than earlier developers, but the Court said the town was under no requirement “to exercise a foolish consistency” by allowing further inharmonious development to take place. Henniker’s attorney told the media: “This is about as complete a victory as is possible, and from Rite Aid’s point of view, as profound a defeat as possible.” The ruling makes it clear that citizens can challenge a commercial development even on land that is already commercially zoned, and that issues of scale, size and compatibility are relevant issues.Rite Aid, which boasts of being one of America’s most admired retailers (based on a survey of business leaders, not consumers) has not indicated whether or not it will force the town to spend more tax dollars to defend itself by continuing its appeal to the New Hampshire Supreme Court.
Rite Aid plans to build 1,500 new stores by February of 2001. They will shut down many of their smaller “bantam units” to build these larger 11,000 s.f. prototypes, which the company calls “bigger and brighter” stores. Send a letter to Rite Aid CEO Martin Grass, Rite Aid, 30 Hunter Lane, Camp Hill, PA 17011-2404. Tell me Grass that Rite Aid should learn from the Henniker, NH case that one size does not fit all, and that the cookie-cutter approach to development just doesn’t cut it anymore. Or go to their website and email them that same message: www.RiteAid.com.
