WINDHAM — The Planning Board refused to accept jurisdiction over a proposed Dunkin’ Donuts while a court case is pending on the project.

The application was submitted by Edward N. Herbert Associates on behalf of the estate of Ruth Bohne. The plan involves razing a two-family house and garage at 43 Range Road to build an 8,876-square-foot building with a Dunkin’ Donuts and room for future office or retail tenants.

The Zoning Board of Adjustment denied the variance in January, believing the drive-through would increase traffic and was contrary to the intent of an ordinance allowing eating and drinking establishments with “consumption primarily on the premises.”

The ZBA refused to hear an appeal of administrative decision because the case has been brought to superior court.

The plan brought to the Planning Board on Wednesday did not mention a drive-through but Community Development Director Laura Scott said it still appeared to be designed for a drive-thru with two lanes around the building. The code enforcement administrator reviewed the new plans and said they still do not meet zoning requirements, Scott said.

Board member Ruth-Ellen Post said the situation was a “special circumstance quite different from what we ordinarily see” and was reluctant to invest the board’s time only to have the court uphold the ZBA decision.

Chairman Margaret Crisler said it would be premature to accept jurisdiction while the matter is in court.

The board voted, 6-1, that the plan was “substantially equivalent” to the plan denied by the ZBA. Carolyn Webber voted against the motion.

Attorney John Cronin of Manchester said he came to the meeting aware that the board might refuse to hear the applicant. In other communities it’s not uncommon for planning boards to hear a case and make approval conditional on getting a variance, Cronin said. Windham has been inconsistent in how it handles such situations, he said.

“We are leaning toward filing an appeal of the Planning Board’s decision and asking the judge to consolidate them so they’re all heard at the same proceeding,” Cronin said after the meeting.

Cronin argues that an ordinance requiring consumption “primarily on the premises” is ambiguous and unenforceable. Since the new plan does not include a drive-through, Cronin said it was substantially different from the plan denied by the ZBA.

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Julie Hanson may be reached at Jhanson@newstote.com.