Fight Against Self-Storage Variance to Be Considered by New Hampshire Supreme Court

A self-storage variance granted by the Derry, N.H., Zoning Board of Adjustments (ZBA) in May has been upheld in superior court, but the town council is appealing the decision to the state supreme court. When the board approved property owner Robert Allen’s proposal to develop a 138-unit facility on 3 acres of residential land at 343 Island Pond Road, the council asked the board to reconsider. When the ZBA reaffirmed its position, the council appealed to superior court, which upheld the approval in December. The New Hampshire Supreme Court is expected to decide whether to review the case in the next few months, according to the source.

The town council argues the self-storage project fails to meet its development criteria and contends the facility would damage the character of the neighborhood and pose a danger to pedestrians due to increased traffic. Allen’s proposal includes four storage buildings and an office structure. The Institute of Transportation Engineers estimates the facility would result in 17 visits per day.

On Dec. 22, judge Andrew R. Schulman ruled the ZBA decision was in the spirit of the ordinance, based on evidence that the facility wouldn’t significantly impact traffic, cause increased noise or spur commercial growth in the rural neighborhood, the source reported. The approved variance is neither “unreasonable nor unlawful,” Schulman wrote in his decision.

The council formally appealed Schulman’s ruling on Jan. 16 with a 5-2 vote. “Now that the town has appealed the decision to the supreme court, our appeal will be shared with opposing counsel, who will have time to review and submit their own briefs on our appeal,” town administrator David Caron told the source.

Allen has spent $200,000 to clean up environmental hazards on the property, though the New Hampshire Department of Environmental Services has indicated unknown hazards may still exist on the site. The property was previously used as an illegal junkyard where solid and hazardous wastes were dumped for about 50 years. Schulman noted in his ruling that town and state officials observed batteries, empty oil drums, piles of used tires, assorted vehicle parts and construction debris at the site. He also observed that Allen “dug up an entire airplane that had been buried on the property.”

“The members of the ZBA were familiar with the junkyard that Mr. Allen purchased and cleaned up,” Schulman wrote. “They were familiar with Island Pond Road and, more particularly, with the stretch of Island Pond Road that surrounds these lots. Neither the town council nor any other party in opposition to the proposed use presented any meaningful evidence tending to show that the use would depress property values.”