It wasn’t a King Solomon moment – no baby – but it was one of the toughest cases the Zoning Board of Adjustment (ZBA) heard this year.
The board had one item on its agenda for Nov. 7, an appeal of the Planning Board’s Aug. 21 decision to approve the site plan for the proposed Dumpster Depot at 41 Ashleigh Drive. Neighborhood residents and supporters, including 100 petition-signers, contended that the board made an unlawful decision in determining that the facility would fall under a permitted use for the Industrial III district.
The plaintiffs made their plea based on the fact that the Planning Board approved the project as a “contractor’s yard,” and that no definition of “contractor’s yard” exists in Derry zoning. The Zoning Board voted unanimously to uphold the appeal and to remand it back to the Planning Board.
The property is Tax Map 08017 and is currently owned by Yvon Cormier Construction. David Paul, owner of the Dumpster Depot, wants to move his headquarters from Manchester to Derry.
Chairman Allan Virr opened the meeting and laid down the rules. “We are here to appeal that decision, and review any zoning-related issues,” he told the residents, who filled the Council chambers. “We are here to decide if the Planning Board had sufficient evidence and testimony to make its decision.”
Virr said the abutters had agreed to allow John O’Connor, a neighborhood resident and Republican state representative, to speak in their behalf. He said others would be allowed to speak after O’Connor’s presentation, but they would be limited to three minutes and discussion should be focused on zoning issues.
O’Connor reiterated several of the group’s previous concerns, including:
• The area abuts the Groundwater Conservation District, and Dumpster users are not required to get a permit for disposing of paint chips.
• The Department of Environmental Services has no record of the company being registered as a waste hauler.
• The repeated acceptance of the project as a “contractor’s yard.” O’Connor said the definition of a contractor’s yard for Derry was repealed by the Planning Board this past May 14, and deleted by the Town Council on June 14.
• The Department of Environmental Services considers the facility a “waste-in-transit” facility, which is not a permitted use in I-III.
• The proposed facility would be located in the newly-established TIF (Tax Increment Finance) District, which, according to O’Connor, has brought in several high-end businesses. He said Dumpster Depot would not make a significant addition to the tax rate, and would negatively impact the business community because the higher-end businesses would not want to locate there.
“An Olive Garden is not going to move in next door,” he said. It would also have a negative impact on homes in the Donmac, Arrowhead and Greenwich areas.
• And, O’Connor said, under the definitions of “general contractor,” there was “no way” Dumpster Depot could be considered one.
O’Connor, also vice-chair of the Planning Board, recused himself from his official capacity for any discussions of the Dumpster Depot. He criticized the board for not allowing new material to be presented by the abutters in the Aug. 21 meeting, while accepting testimony from the applicant.
“We want to be known as Space Town, not ‘Trash Town,’” O’Connor said.
Board secretary Donald Burgess asked, “Aren’t the Dumpsters used mostly for demolition?”
That was Paul’s position, O’Connor said. But, he added, “Any house built before 1980 has lead paint.”
“That’s not zoning,” Virr reminded them.
Virr opened the meeting to the public. Brenda Wilson of Greenwich Drive was first to the podium. Wilson was the “Erin Brockovitch” of the story, a private citizen who had never been involved in politics. Along with O’Connor, she served as a spokesperson for the group and did most of the research.
“It has been a very long six months,” she said.
Wilson’s testimony focused on the misrepresentation of Paul and his engineer, Chris Tymula, in the area of full versus empty containers. She said the applicants “lied to the Conservation Commission on April 8, 2012;” lied to the Technical Review Committee on Nov. 9, 2012; lied to the TRC again on Jan. 11, 2013; and lied to the Planning Board on May 15, 2013, all on the issue of empty Dumpsters coming back to the facility. Over the summer, Wilson said, their position changed.
Virr initially stopped Wilson when her three minutes were up, but then let her finish her statement.
David Fischer of Donmac Drive also spoke, saying Paul and Tymula “do not have the right to jeopardize the health and safety of the people residing in our community.”
The board went into its deliberation, with Virr reminding his colleagues that they were only to discuss zoning-related issues. He took the issue back to basics, going through every permitted use in the I-III district and asking the board if Dumpster Depot fit the criteria. They said “no” to the following:
• warehouse and wholesale;
• manufacturing;
• professional office building (“Definitely not,” someone said):
• public utility;
• machinery and transportation equipment (“A stretch,” Virr said); and
• freight and trucking terminal, which they agreed was more related to merchandise;
• parking garage, animal hospital, bulk fuel distributor and brewery.
Virr read the list of prohibited uses from the zoning ordinance 165:41-d, which included anything “injurious, noxious or offensive, including odor, fumes, dust, smoke, vibration and noise.”
Burgess said, “It doesn’t look like the Planning Board went through 165:41 in its entirety.”
Virr reminded his board that they don’t have the ability to negate the Planning Board approval. “But we do have the ability to question their interpretation of 165:41,” he said. “We can uphold Mr. O’Connor’s petition.”
The motion was crafted in the affirmative, to say that the ZBA supported 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.
All five members voted yes, with Vice-Chair Lynn Perkins saying, “I support Mr. O’Connor’s appeal because I found ‘contractor’s yard’ does not apply in this case.”
Virr explained what the vote meant. The case will now be remanded to the Planning Board, which will need to get David Paul to obtain a variance to build a Dumpster Depot headquarters on Ashleigh Drive, and Paul must take that request for a variance back to the ZBA.
After the vote, Wilson hugged supporters and said she was “very happy.” Though Paul still has to go through the variance process, she said, “I don’t think he’s going to get it.”
O’Connor, quoting from one of the ZBA criteria, said, “Substantial justice has been done.”
