At its Sept. 17 meeting, the Derry Planning Board heard arguments against the proposed General Commercial IV (G IV) district ranging from lack of a provision for agriculture to lack of a provision for auto-related businesses. But the theme was the same: landowners should be able to do what they want with their property.
The Planning Board held a public hearing on the proposed GC IV district, which would include portions of South Main Street and Route 28 to the Windham line. The proposed district will be discussed in a second public hearing Nov. 19, after which there will be a vote on whether to adopt the new district.
The proposal would amend the Zoning Ordinance to add a new section, Sec. 165-32.2, General Commercial District. The new district would incorporate three parcels from the Office Medical Business District and 77 parcels from the General Commercial District.
Planning Director George Sioras explained that with the expansion of town water and sewer up Route 28 as far as Berry Road, the Town Council had asked the board to look at the entire commercial zone. Several enterprises are not allowed under the proposed ordinance, including auto-related businesses and new residential construction, although auto and residential parcels currently in the area will be grandfathered in should the district be adopted.
“But any new business of that nature would not be permitted,” Sioras added.
Marjorie Palmer and her husband, Wilbur, own his family’s former homestead property, including three properties on or near Rockingham Road/Route 28. Her daughter Melissa Polk, who lives at one of the properties on Kilrea Road, said her family had farmed the property and her father was born in the living room. When the General Commercial district was adopted in the area in 1969, “our ability to farm was taken from us,” she said.
One of the lots has stone walls, lilac bushes and fruit trees, and since she was a child, she’s wanted to live there one day. “But our ability to build a single-family home has also been curtailed,” Polk said.
Polk expressed concern that “our ability to use the land as it was intended to be used by our ancestors has been taken away. You continue to tell us what we can and can’t do with our land,” she said.
Gerald and Beth Seragusa, owners of two parcels on South Main Street, objected to a different part of the amendment: In fall 2012 the Planning Board began holding workshops on amending the zoning ordinance and suggested limiting permitted uses, including having a minimum distance of 1,000 feet between any gas station, auto dealership, auto repair shop or other automobile-related business. They engaged attorney Morgan Hollis of Nashua, who represented them in their dealings with the town. Among other things, Gerald Seragusa said, zoning should be “reflective of the goals of the town” and should recognize existing uses, not zone them out.
“It is illegal,” Seragusa said, “to try to change the character of an established neighborhood.”
After much testimony, the Planning Board dropped the 1,000-foot requirement, Seragusa said. He and his wife began to pursue the use of one of their parcels for an auto-related business. “This does not limit that, it prohibits it entirely,” he charged.
Seragusa said the Planning Board had “misled” landowners for two years.
Dale Smith of Rochester, co-trustee with his mother of 48 acres on Rockingham Road, said, “Put yourselves in our shoes. A government entity is supposed to work for us, not against us. You need to go back to the workshop.”
Plaistow Realtor Sheldon Wolff owns land on Rockingham Road and presented a letter with signatures from 15 property owners objecting to the proposed change.
“We request no changes be allowed and no limits be applied to the uses currently in effect,” he said. Limiting the owners’ options for future businesses, Wolff said, is discriminating against the owners and their property rights.
“In the Real Estate industry, we look at something from a pragmatic standpoint. Is it the highest and best use?” he stated.
Wolff contended the proposed district was an “attack on the used-car business.”
Wolff asked the board to let the industry dictate what businesses came in, and predicted that once water and sewer was complete, it would change the face of the area.
Wolff recalled a statement from Chairman David Granese in an earlier meeting. “Mr. Granese said, ‘It is our job to say yes.’ I am urging you to say yes to these landowners,” he said.
Wolff also reminded the board that it needs a vision for the town, for young families and growing businesses, and noted the tax rate is out of control. He said he understood that school children affected the tax rate, but added that “if we don’t educate our children, we’ll have situations like Iraq and ISIS.”
Wolff also quoted the Fifth Amendment, specifically the section that states citizens cannot be deprived of life and liberty of property without due process of law, and that private property cannot be taken for public use. He repeated the theme with a quote from the 14th Amendment.
And he warned the board that Rockingham Road was like Star Trek. “It’s the ‘last frontier’ of commercial property in town,” he said. It’s also like the Spotted Owl, an endangered species that needs to be protected, he said.
Gary Hamm, who owns land at 88 and 90 Rockingham Road, runs a heavy equipment business. He has fought to keep that area commercial, he said. “Now that we’ve got sewer and water, it’s in more jeopardy than ever,” Hamm said.
He dabbles in specialty cars on the side and has considered a specialty car business on one of his parcels, and he’s also thought about truck sales and expanding the equipment line. And building a two-family home on his land “is now out of the question,” Hamm said.
“You are limiting what democracy is all about,” Hamm said.
Mark Lovski, owner of the Second Car Center on Rockingham Road, said he would be retiring soon and wanted to sell the business to his general manager. “Can the place still be sold to him?” Lovski asked.
Granese said that whatever existing use was current at the adoption of the ordinance would continue, no matter who owned it.
Harlan “Buster” Brown, owner/operator of Motorsport on Tinkham Avenue, also owns two parcels on Rockingham Road. He said he was in complete accord with the previous speakers. “We are being dictated to as to how we use our property,” Brown said, and urged the board to “think about this seriously.”
The board had varied opinions on the citizens’ concerns. Board member Darrell Park said, “As long as the business is not offensive to the public, it should be allowed.” Though no vote was to be taken that night, he said his viewpoint was, “Kill GC IV.”
Member Ann Alongi agreed. “I understand that you want to see commercial going up 28,” she said. “But why are we stopping residential? And why are we telling people they can’t do what they want with their property?”
Wolff spoke again, saying, “You have a moral and legal obligation to give to the residents.”
Member Randy Chase had a different perspective. “All I’ve heard tonight is, ‘Take, take, take,’” he said. “We’ve added three permitted uses tonight, day care, home occupation and warehouse, and we’re planning to add five more.”
Michael Fairbanks, Town Council representative to the Planning Board, said the Council was behind getting more business and industry on 28 because the taxpayers have invested $10 million in the expansion of water and sewer.
“The town is ‘giving’ to that area with water and sewer,” he pointed out. “We want to see that there’s a return on the investment.”
A second public hearing on the proposed General Commercial IV district will be held during the Planning Board meeting Wednesday, Nov. 9.