Resident John O’Connor’s appeal of a Superior Court decision has been accepted by the state Supreme Court, and the decision of Derry’s Zoning Board of Adjustment (ZBA) has been upheld.
O’Connor was appealing a Superior Court decision regarding Accurate Transport LLC, the owners of Dumpster Depot, a decision that reversed a ZBA decision prohibiting the Dumpster company from building on Ashleigh Drive.
Planning Board chair David Granese said this week that he thinks the Supreme Court ruling “did Derry a disservice.”
Dumpster Depot details
Dumpster Depot owner David Paul sought to build a facility housing 350 of his rentable Dumpsters on land at 41 Ashleigh Drive. The parcel is PID 08017 and is zoned Industrial III. Paul planned to relocate his headquarters from rented land in Manchester to property then owned by Yvon Cormier Construction Co. But he met with resistance from the residents of the neighborhood, including those on Donmac, Arrowhead and Greenwich roads, who expressed concern that the project would bring noise and pollution to their residential neighborhood.
Residents, including O’Connor, also expressed concern that Paul had broken faith with them on several issues, including saying originally that no un-emptied 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, ended up supporting the 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, 2013 in a 5-2 vote. But residents Brenda Wilson and O’Connor, a Planning Board vice-chair who recused himself, filed separate appeals to the decision.
Wilson filed hers with Rockingham Superior Court. O’Connor filed his with the ZBA, 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.
On Nov. 7, 2013, 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.
In February 2014 the property changed hands, with Cormier selling it to 41 Ashleigh Drive LLC, a company in which David Paul is a partner.
Accurate Transport appealed the ZBA decision to Superior Court, an appeal that was accepted and overturned the ZBA ruling. O’Connor then appealed the decision to the New Hampshire Supreme Court, and the case was heard on April 22, 2015, with a decision issued Aug. 11.
Accurate Transport’s appeal was accepted, with the lower court ruling that the abutter’s appeal to the ZBA was untimely.
The Supreme Court’s written decision reviewed the facts and timeline, including:
• November 2012. Accurate Transport submitted a preliminary site plan to the Planning Board.
• November 2012. The Technical Review Committee (TRC) for the town met to discuss the Dumpster Depot proposal, and Code Enforcement Officer Bob Mackey stated that the property could be classified as a “contractor’s yard” and also a “freight and trucking terminal.” The TRC approved the proposed plan.
• June 19, 2013. The Planning Board voted 7-2 to take jurisdiction of the project. However, the motion was withdrawn and the hearing continued to Aug. 21.
• Aug. 21, 2013. The Planning Board voted to approve the application subject to several conditions, some of which differed from the conditions of June 19.
• Aug. 28, 2013. A written notice of the decision was issued.
• Sept. 13, 2013. Abutter O’Connor filed an application for administrative appeal with the ZBA. His basis for argument was that Mackey decided in error when he determined that the proposed use was a “contractor’s yard,” no definition of which existed in zoning.
• Oct. 3, 2013. The ZBA considered O’Connor’s appeal; denied it because, based on Mackey’s original determination, the appeal was “untimely;” and converted the appeal to an appeal of the Aug. 21 Planning Board decision.
• Nov. 7, 2013. The ZBA met regarding O’Connor’s appeal and concluded that the zoning ordinance “did not permit the proposed use under any classification.” The ZBA determined that the Planning Board erred in its approval of the project.
Accurate Transport then made its appeal to Superior Court, reasoning that O’Connor’s appeal was untimely and that the ZBA lacked the authority to treat the appeal as an appeal of the Aug. 21 decision. The Superior Court determined that the ordinance states that the period of appeal is 20 days from a written decision, and since Mackey’s decision was made in June and published July 19, O’Connor’s appeal was not timely. However, it also determined that “factual findings by the ZBA are deemed prima facie lawful and reasonable, and the ZBA’s decision will not be set aside absent errors of law.”
In the appeal to the Supreme Court, Accurate Transport attorney Morgan Hollis argued that the ZBA “acted unlawfully in converting the appeal to an appeal of the Planning Board’s Aug. 21 decision” and contended that no statute allows the ZBA to act in that manner. The Supreme Court countered that “although there is no statutory provision that allows the ZBA to ‘convert’ an appeal, there is also no statute that prohibits the ZBA from taking such action.”
The court acknowledged that the ZBA has “broad authority on subjects within its jurisdiction.”
Accurate Transport argued that the lower court correctly determined that O’Connor’s appeal was untimely because any decision that Dumpster Depot was an allowed use was made on June 19, 2013. But the Supreme Court determined that in light of RSA 676:5, which allows Planning Board decisions to be appealed to the ZBA, it should be interpreted as “a Planning Board decision about a zoning ordinance is ripe and appealable to the ZBA when such a decision is made.”
The court concluded that the ZBA did not err in treating O’Connor’s appeal as an appeal of the Aug. 21 decision.
But Granese remained unconvinced. In a phone interview last week, he said, “The Superior Court denied John O’Connor’s appeal and sided with Dumpster Depot. The Supreme Court reversed the decision of the Planning Board.”
Granese is concerned about the ruling’s effect on businesses hoping to locate in Derry. “It means Dumpster Depot can’t build there, even though the judges all agreed it’s an allowed use in the zone,” Granese said.
“If businesspeople want to come to Derry, and the abutters appeal their being there, the abutters are going to win,” he said.
But Granese has no regrets. “If Dumpster Depot came before us today, I would still vote for it,” he said. “It’s an allowed use in that zone.”
O’Connor could not be reached for comment.
