The Zoning Board of Adjustment (ZBA) rejected an appeal of an administrative decision by Code Enforcement Officer Bob Mackey regarding the proposed Dumpster Depot off Ashleigh Drive, but left the door open for opponents of the project to appeal it through another avenue.
A group of about 20 residents of the neighborhood adjacent to the property appeared at the meeting along with State Rep. John O’Connor, R-Derry, who lives in the neighborhood and filed the appeal. The appeal was rejected 5-0 by the ZBA, with Chairman Allan Virr suggesting the group instead file an appeal of the Planning Board’s Aug. 21 decision to accept the application.
The property is Parcel 08017 and is zoned I-III. The owner of the parcel is Yvon Cormier Construction Corp. and the owner of the Dumpster Depot is David Paul. Paul did not appear at the meeting.
O’Connor’s appeal centered on the fact that he believed Mackey was in error when he determined that the Dumpster Depot project fell under the permitted usage of “contractor’s yard.” There is no definition of “contractor’s yard” in the Derry zoning ordinance, O’Connor and opponents have said.
But Virr said the issue was outside the ZBA’s jurisdiction because of the timing.
“Bob Mackey made the decision that this fits under ‘contractor’s yard’ on April 21,” Virr told O’Connor. “You would have had to file an appeal to that decision within 30 days.”
However, he said, the opponents could file an appeal of the Planning Board’s decision of Aug. 21. Because O’Connor filed his appeal on Sept. 13, it falls within the window of time to appeal the Planning Board’s decision, Virr said.
Virr reviewed the approval process, including having police, fire and the Conservation Commission sign off on a proposed project before it comes to the Planning Board. “If the Planning Board rejects it, then your recourse is to come to the ZBA,” he told O’Connor.
Virr said, “If you agree with our ruling, that we don’t have jurisdiction, we will convert your appeal to an appeal of the Planning Board decision and we will hear the Planning Board case.”
O’Connor agreed to do so.
Virr said a document O’Connor provided dealt with a number of issues previously raised by the residents.
Virr said in the appeal of the Planning Board decision, David Paul would also have an opportunity to be heard.
He urged O’Connor to add the other residents to his appeal, and have them sign a letter authorizing him to speak on their behalf.
Member Donald Burgess told O’Connor that if he had any more supporting material, it must be received by the Code Enforcement office within 10 days of the next board meeting, which is Oct. 17.
Though Virr made it clear that this was not a public hearing, he allowed residents to speak toward the end of the meeting. Abutter Robert Zinkevicz asked, “Has the Planning Board decision and attitude influenced your decision?”
“We will go according to the ordinance,” Virr said.
Resident Michael Morrissey said he had been in touch with the office of U.S. Sen. Kelly Ayotte, R-NH, and a representative told him, “If there’s anything inappropriate, we will take you by the hand and help you appeal.”
“You are trying the case for us,” Virr responded.
He reminded residents that “If we make a decision you don’t like, you have 30 days to file with Superior Court.”
The board went into deliberative session and crafted a motion to refuse jurisdiction on the appeal of the administrative decision of the Code Enforcement Officer, but allowing it to convert to an appeal of the Planning Board decision. Conditions included O’Connor, or his designee, providing extra materials to the board no less than 10 days before the hearing and the applicant providing a list of the parties he represented.
The motion to refuse jurisdiction but to convert the appeal to appeal of the Planning Board decision passed, 5-0.
“You lost this appeal, but you may have won,” Virr told O’Connor.
The revised appeal will be heard in the Oct. 17 meeting.
