An Adams County District Court judge plans to decide after June 13 whether to allow a local bank’s injunction order that could prevent a Dunkin’ Donuts from opening on North Burlington Avenue.
The Bank of Doniphan filed the injunction May 24 against QSR Services and Galaxy Ventures, both of Omaha. Judge Stephen Illingworth heard arguments in court Wednesday from both sides but won’t make a ruling until after he receives rebuttal affidavits that are due June 13.
On Wednesday, representatives with the Bank of Doniphan and their attorneys spoke in favor of the injunction that could permanently shut down the project they have objected to for nearly a year. Construction of the Dunkin’ Donuts business began about three weeks ago.
Don Swanson, an Omaha attorney representing the bank, argued that the bank’s issue with the building of the business hinges on one sentence in the covenants set forth in 2004 for that development area by developer Tom Lauvetz. He died in 2009.
Paragraph 5 of the covenant includes a restriction regarding the lots, stating that “unless otherwise approved in advance in writing by the Declarant, all building and improvements shall be used as commercial office spacing, including but not limited to, the operation of banks, savings and loan associations, savings banks and other financial institutions and related drive-thru and ATM facilities.”
“(Dunkin’ Donuts) is a restaurant drive-thru, not a commercial office space,” Swanson argued in court.
In addition to not meeting the covenants for the project, Swanson argued that the defendants didn’t go through the proper process to receive a waiver allowing for Dunkin’ Donuts to be built on that property.
Attorney Brian Buescher of Omaha, who is representing Bryce Bares, developer for the project, said the covenants don’t contain a specific definition of a commercial office space and that city zoning allows for a Dunkin’ Donuts operation to be built on the property in the 700 block of North Burlington Avenue.
Buescher said that the minutes of a 2004 Hastings City Council meeting noted that the property would allow for any C-O commercial office non-retail districts or CP2 commercial planned district.
As for a commercial office space, Buescher argued that he doesn’t believe the bank is an office either in that there is traffic there throughout the day as retail customers enter and leave the bank at regular intervals just as they would with a Dunkin’ Donuts business.
“This isn’t an office where people come to work and go home at the end of the day,” Buescher said. “Bank of Doniphan is a high-traffic enterprise. That’s why they need three drive-thrus.”
Swanson said the bank does have traffic and its customers and staff already have problems trying to enter and exit Burlington Avenue. He believes the addition of Dunkin’ Donuts would only cause further problems.
“The bank isn’t just being ornery,” Swanson said. “Getting out of this thing is a bear.”
He said that existence of a Dunkin’ Donuts will add additional traffic and until issues with traffic are addressed along with the covenants, the bank wants a hold on the project.
Buescher said the bank already is trying to put a hold on the project by having bank staff block the entrance from Burlington Avenue by parking vehicles on the easement.
He said the easement was established in 2014 by the city of Hastings after the Bank of Doniphan purchased the north 75 feet of Lot 2, which abuts the property acquired for the Dunkin’ Donuts project.
According to information provided by the defendant, the easement was added because there was no established entrance/exit from the remainder of Lot 2 if the easement wasn’t added.
Buescher said that with Bank of Doniphan staff blocking that access to the property, construction and dirt-moving crews have been using an easement that abuts Great Western Bank’s property to the south. There is no written agreement with the bank, however, he said, and that easement could be blocked, as well, should that bank choose not to cooperate.