The Derry Planning Board will revisit its plans to create a General Commercial IV district on the southern portion of Route 28, after a public hearing brought a strong appeal from the public.
The board has drafted plans to create the district, stretching to the Windham line, in order to capitalize on the potential benefits of having town water and sewer in the area. The town has recently completed work on expanding the utilities to a portion of the road. But the provisions for GC IV also included a prohibition against any further single-family home development and any auto-related businesses, and property owners argued that this was taking away their rights to develop their land as they see fit.
Atty. Morgan Hollis of Nashua was the first speaker in the public hearing Wednesday, Nov. 19. He said he represented several families affected by the proposed change, including Gerald and Beth Seragusa, Wilbur and Marjorie Palmer, Dale Smith and his mother, Ruth, and Dr. Timothy Butterfield.
Hollis said the implementation of the new district would affect 23 single-family homes and 16 automobile sales lots. While the uses are “grandfathered in,” he said, grandfathering does not allow them to expand their uses.
“That means we would have 40 properties that are grandfathered but illegal,” Hollis told the board.
Hollis said with the many different land uses in the area, “this is not a general commercial district. It is a mixed-use district.”
Hollis argued that it is necessary for any zoning change to have a purpose, whether that be health, safety, moral or general welfare. The court would ask four questions, he said:
• Is it out of harmony for the comprehensive plan for the good of the community?
• Does the public need to support it?
• Does it reflect the current character of the district? and
• If not, sufficient basis must be provided for “targeting” this area.
Hollis said he had read the town’s Master Plan and didn’t find anything in it about removing single-family homes in that area and nothing about eliminating auto sales.
“If it were large tracts of undeveloped land, maybe there would be a basis,” he said, adding that the homes are already in the disputed area.
Is there a “public need” to eliminate the uses? Hollis observed that currently, “Single-family and the other uses exist together rather well.”
Hollis said the proposed district and its restrictions do not reflect the general character of the neighborhood. “It would be perfect for mixed use, and the time is now,” Hollis said.
Melissa Polk, daughter of Marge and Wilbur Palmer, took the microphone to say that her family had owned land in the area since 1873 and farmed it until 1969, when the GC district was established. “Now you’re trying to tell us what commercial applications we can put on our own land,” she said. She urged the board to “go back to the drawing board” and consider mixed-use.
Sheldon Wolff, a Realtor who owns property on Route 28, said the elimination of homes and auto businesses was discrimination. “It’s immoral and ridiculous,” Wolff said.
Wolff said in real estate they look for the “highest and best” use of a property, and it was wise to let the free market dictate what that use would be.
“There is no reason to create a new zone,” he said. He disputed the board’s stated purpose of return on investment for the water and sewer.
“The southern part of the road pays the same as the northern part,” he said.
Wolff invoked the fifth, ninth and 14th amendments to the Constitution and said, “It makes common sense, business-wise, to have more things up there.”
And, he said, “There has been no study to support the basis of this horrific change.”
The Seragusas also spoke and quizzed Vice-Chair John O’Connor, who was running the meeting, on the reasons behind the changes.
“Is it because more taxes will come in?” Gerald Seragusa asked.
“That is one of the reasons,” O’Connor said.
“Is it because otherwise there would be more kids in the schools?” Beth Seragusa asked.
O’Connor said the school district is a separate entity. But, he said, by courting large commercial property “we are trying to offset the impact the school district puts on the tax rate.”
Marge Palmer questioned the nebulousness of the future income. “Who benefits in your proposed zoning change?” she asked. “There is a plan to bring money to the town at some indefinite time, to be paid for by the property owners who’ve held on to their land all these years.”
Dale Smith, representing his mother, Ruth, owner of 120 Rockingham Road, said, “I feel like I’m talking to a wall.”
But Council Chairman Mark Osborne, speaking as a private citizen, said, “Many people have come to the conclusion that Derry’s tax rate is not sustainable. Derry’s economic decline, on Route 28 or on Main Street, is not sustainable.”
Osborne said mixed use on that stretch of road wasn’t practical. “I respect what I’ve heard from the property owners, from those with a family legacy,” he said. “But there are thousands of residents out there who support this zoning. Will the tax rate come down? It won’t come down by closing a school. It won’t come down by cutting positions or services. It will only come down when we bring in industrial and commercial businesses.”
Osborne also said mixed use wouldn’t work because of the NIMBY (Not In My Back Yard) factor, referring to residents’ efforts last year to keep a Dumpster Depot from relocating off Ashleigh Drive.
“What if the wrong business wanted to be on Route 28, with mixed use?” he asked. “How long before we’d have one of those situations? How much more dirty laundry needs to be aired?”
Businesses may want to come to Derry, Osborne observed, but they don’t want to end up in Rockingham Superior Court.
Harlan “Buster” Brown, owner of Motorsport on Tinkham Avenue and two parcels on Rockingham Road, asked for more thought. “We are thinking ahead of ourselves,” he said. “We don’t have the tools in place.”
“We need to be able to sit down and come to a compromise,” Timothy Butterfield said.
O’Connor agreed and encouraged his fellow board members, “For a decision of this magnitude, let’s not rush into it.”
The board discussed options, including a subcommittee or exploring alternatives as it has been doing.
The board agreed to continue discussions and hearings, and to hold a workshop session with stakeholders Jan. 21, 2015. They voted unanimously to reject the GCIV district in its draft form.