Dumpster Depot Decision Heads to Superior Court

A frustrated advocate against the Dumpster Depot plans for Derry got answers at the Jan. 22 Town Council meeting, though they weren’t necessarily the ones she wanted.

Brenda Wilson of Greenwich Road appeared before the Council in the public forum part of the meeting to ask for answers regarding the Dumpster rental firm and its owner David Paul’s efforts to build a facility on Ashleigh Drive, on a parcel of land abutting Wilson and several of her neighbors. The project, while approved by the Planning Board in its Aug. 21 meeting, was remanded back to the Planning Board after the Zoning Board of Adjustment approved an appeal by resident John O’Connor, after which the ZBA also refused a request for a rehearing.

Wilson and others learned last week that the Planning Board was seeking advice from a lawyer, as reported in the Nutfield News, and that news formed the bulk of Wilson’s questions.

“We followed all the proper procedures, and the Zoning Board upheld it twice,” she said. “Why are you hiring another attorney, who chose them, and what is it going to cost us?”

Wilson observed that the Planning Board had run out of time to file its own appeal. “If they did file an appeal within the 30-day timeline, why were we not told?” she asked the Council and Acting Town Administrator Larry Budreau.

Wilson also wanted to know the current status of the Dumpster Depot application.

“You need to take a harder look at the agenda of the Planning Board,” she told the Council.

Wilson had e-mailed all seven of the Councilors and received only one response, she said. That response included the phrase, “Let me know what you find out.”

“I was contacting them to find things out,” she said. “Shouldn’t you as the leaders know what’s going on? Who runs this town?”

Wilson said she “respectfully requested” an answer. She said she didn’t want to hear “I don’t know” or “I’m not sure.”

Councilor Neil Wetherbee asked what the process was by which the lawyer was hired, noting, “I thought it had to go through the Council and we had to get RFPs (Request for Proposals).”

Budreau said the current status of the Dumpster Depot application was that Paul had appealed the Zoning Board’s decision to refuse the rehearing. It is being docketed at the Rockingham County Superior Court, he said, “and I expect the town to be served in a couple of days.”

He told Wilson, “I understand there is a huge amount of sentiment and emotion on your part. When the Planning Board’s decision was remanded back to it, the Planning Board had a situation that was new to it, and they wanted advice from our law firm.” A representative of the firm, Boutin and Altieri, expressed concern about a possible adverse relationship between the two town boards.

“A town attorney can’t represent both parties,” Budreau said. The decision was made to engage a lawyer from another “respected law firm” recommended by Edmund Boutin, with the possibility of engaging a third attorney for the ZBA.

“None of us,” Budreau said, “have the legal expertise to answer these questions.”

Wilson said she still had an appeal to the Planning Board’s decision in Superior Court, but that she hadn’t yet served the town with it.

The next step for the Planning Board, Budreau said, is to decide whether or not to appeal the Zoning Board’s decision not to rehear the issue. “They have a second bite at the apple,” he said. “They have to see whether they agree or not agree to do it.”

Councilor Al Dimmock, who has served on the Zoning Board and is the current Council representative to the Planning Board, disagreed. “The Zoning Board is a quasi-judicial body,” he said. “That means they judge. It’s been proven by the Zoning Board that they (the Planning Board) didn’t do it right. If the Zoning Board finds no new evidence, they don’t have a new case. The only recourse is for Dumpster Depot to go to the courts. The Planning Board has no right to question the Zoning Board’s decision.”

Dimmock also expressed concern about engaging a lawyer for the Planning Board, noting, “Nobody came to me as a Councilor and told me they were going to do it.”

Paul Beliveau of Donmac Drive, another abutter, said he echoed Wilson’s concerns. “The whole fiasco is not on the up-and-up,” he said. He asked the Council, “Don’t you have jurisdiction to find out what’s going on?”

Budreau told Wilson and Beliveau, “The Planning Board hasn’t initiated any action, it hasn’t taken any action. If the Planning Board just wanted to talk to our attorney, it would be business as usual.”

But involving the Zoning Board upped the ante, according to Budreau, and Boutin “told us that he can’t advise both boards in an adversarial situation.” The cost of the recommended attorneys is no more than consulting Boutin, Budreau said.

The property in question is Parcel ID 08017, at 41 Ashleigh Drive, and is zoned Industrial III. It is 62 acres, and the plan had been to store up to 350 Dumpsters.

David Paul, doing business as Accurate Transport LLC, began seeking approval to move his facility from rented land in Manchester and build on the land owned by Yvon Cormier almost a year ago. He encountered resistance from the residents of the Donmac, Arrowhead and Greenwich neighborhood, who expressed concern about noise, air and groundwater pollution.

They also charged that Paul broke faith with them on several issues, including saying originally that no unemptied Dumpsters would be brought back to the facility, and changing his tack on that over the summer. Conservation Chair Margaret Ives, whose group had originally approved the project, supported the neighbors, saying the plan had changed from the one she heard in her meeting.

The Planning Board, citing the fact that the area was zoned for such a facility, approved the project Aug. 21 in a 5-2 split vote. But residents Wilson and O’Connor filed separate appeals to the decision. Wilson filed hers with Rockingham Superior Court. O’Connor filed his with the Zoning Board of Adjustment, contending that the project was illegally approved as a “Contractor’s Yard” when no definition of a contractor’s yard existed in the zoning ordinance.

The Zoning Board voted 5-0 to support O’Connor’s appeal of the administrative decision of the Planning Board, and that the Planning Board made an “unlawful decision” when it approved the project as a Contractor’s Yard.