Planning Board Seeks New Legal Opinion on Dumpsters

The Derry Planning Board is seeking a legal opinion after the Zoning Board of Adjustment overturned its decision to allow David Paul, owner of the Dumpster Depot, to build a facility on Ashleigh Drive.

At the Jan. 15 Planning Board meeting, Chairman David Granese referenced the decision and said the board was seeking legal counsel.

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.

Paul, doing business as Accurate Transport LLC, began seeking approval to build on the land owned by Yvon Cormier almost a year ago. While his plan initially cleared the Conservation Commission and the Technical Review Committee (TRC), he encountered push-back from the residents of Donmac, Arrowhead, Greenwich and other roads in the neighborhood.

The abutters 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 supported the neighbors, saying the plan had changed from the one she heard in her meeting.

Paul’s engineer, Chris Tymula of MHF Design, said the state Department of Environmental Services regulations would allow Paul to store an unemptied unit for up to four days. Paul said he had to bring back unemptied units on occasion, when the place where he had to dump them was closed. Tymula and Paul asked for 24 hours. The board approved 24 hours on a weekday and 36 hours on a weekend.

Other issues of contention included hours of operation and Saturday operation, with residents saying that Paul had originally said “no Saturdays.”

The Planning Board, citing the fact that the area was zoned for such a facility, gave Paul its go-ahead on Aug. 21 in a 5-2 split vote. But residents Brenda Wilson and John O’Connor filed separate appeals to the decision. 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.

Over the weekend, O’Connor and Wilson expressed disapproval of the Planning Board’s newest action.

Wilson wrote in an e-mail to Acting Town Administrator Larry Budreau, “At the last Zoning Board meeting where they upheld our appeal, it was stated that the applicant had two options: file for a variance or go to Superior Court. No option was mentioned to go to Granese and have the town hire a lawyer for another opinion.”

Wilson had several questions she wanted answered, including who authorized the hiring of another attorney and why, what was the purpose of hiring an attorney, who chose the attorney, what is the current status of the Dumpster Depot application and “Why spend taxpayer dollars on hiring another attorney when all along the town attorney has been consulted on this case?”

At the Jan. 15 meeting, Granese referenced a meeting he had with Planning Director George Sioras, Planning Assistant Elizabeth Robidoux and Budreau. Wilson said she was requesting minutes of that meeting under RSA 91:A.

In a phone interview Saturday, Wilson said she “couldn’t believe” the Planning Board was contesting the decision instead of letting Paul go through the channels of filing for a variance or going to Superior Court. “It’s almost as if the town is doing his work for him,” she said of Paul.

Wilson said she has not withdrawn her appeal with Superior Court.

“I wasn’t convinced this was over,” she said, adding, “But this threw me for a loop.”

O’Connor said in a phone interview that the last day for Paul to file his appeal with Superior Court was Jan. 19. “The citizens and the Town Council all agreed it was not a correct business,” he said. “I believe the town should move on from this, and get some appropriate businesses in there.”

Resident Susan Salvaggio wrote in an e-mail, “What this Planning Board has done and continues to due is beyond unethical and unconscionable. We thought we were through with this; however, Mr. Granese continues to make this an issue and prolong the pain. I guess he didn’t agree with the Zoning Board’s decision and is fighting back. Unbelievable.”

“The Planning Board did everything right,” Granese said. “The Zoning Board was wrong.” Granese declined further comment until he had the legal opinion.