The Town of Derry, in particular its Zoning Board of Adjustment (ZBA), has been served papers in a lawsuit filed by the Dumpster Depot, doing business as Accurate Transport Inc.
Dumpster Depot owner David Paul is contesting a Nov. 7, 2013 decision by the Zoning Board that the Planning Board erred in accepting jurisdiction for Accurate Transport’s site plan.
Paul wants to move his Dumpster rental business from Manchester to 41 Ashleigh Drive in Derry, part of the TIF (Tax Increment Financing) district and Industrial III zone. Residents in the Donmac, Arrowhead and Greenwich neighborhoods, which abut the proposed facility, objected, citing noise and pollution issues.
Abutter John O’Connor filed an appeal with the ZBA on the basis that the project was approved as a “contractor’s yard.” O’Connor at first wanted an appeal against an administrative decision by Code Enforcement Officer Bob Mackey this past spring, but ZBA Chairman Allan Virr told him that the window for an appeal had passed. It had not passed for an appeal of the Planning Board’s decision of Aug. 21, and the ZBA converted O’Connor’s appeal of Mackey’s decision to an appeal of the Planning Board’s decision.
Paul’s attorney, Morgan Hollis of Nashua, is contending that the Zoning Board’s decision was unlawful and/or unreasonable. Hollis’s rationale includes the following:
• The ZBA lacked jurisdiction to consider whether the proposed Depot’s use was as a “contractor’s yard.” The Zoning Board found the Planning Board’s Aug. 21 approval of the project invalid because it was approved as a “contractor’s yard,” and opponents to the plan said there was no definition of “Contractor’s Yard” in the town zoning ordinance.
Hollis wrote, “Technical compliance with the procedural deadline for filing an appeal of the Planning Board’s decision had not been made, therefore the ZBA had no jurisdiction to review the Planning Board’s decision.”
Hollis also wrote that a Planning Board decision regarding a zoning ordinance is “ripe and appealable” to the ZBA when a decision is initially made on that issue, not after final approval of a site plan. He said because the Planning Board initially considered whether the use was a “Contractor’s yard” on June 19, 2013, O’Connor should have filed his appeal within 20 days of that decision.
• The ZBA unlawfully considered more of the Planning Board’s decision than was raised by O’Connor in his appeal. Hollis wrote that O’Connor was challenging the Code Enforcement Officer’s decision and only that decision. In invalidating the Planning Board decision, Hollis wrote, the ZBA also invalidated the Planning Board’s determination that in addition to a Contractor’s Yard, the proposed facility was also a permitted use as a commercial services establishment and a freight trucking terminal.
• Hollis contends that the ZBA exceeded its lawful authority in converting the appeal and was unreasonable “in failing to follow its own rules.” He wrote that Accurate Transport followed the “rules, regulations, ordinances and customs” of the Town of Derry in its application for approval of the site plan to allow use of the property at 41 Ashleigh Drive for the Depot.
He wrote that the ZBA’s reversal of the Planning Board’s decision, at such a late stage and after time and expense for Paul, was unlawful and unreasonable. Hollis also contends that Accurate Transport’s due process of law was violated when the ZBA chose to “ignore its own rules” and, without request from O’Connor, convert the appeal to a completely different appeal.
A merits hearing will be held April 25 at 9 a.m. in Rockingham Superior Court.