Accurate Transport, Inc. v. Town of Derry
Annotate this CaseRespondent Town of Derry appealed a Superior Court decision granting the motion for summary judgment filed by petitioners, Accurate Transport, Inc. and 41 Ashleigh Drive, LLC (Ashleigh Drive), on the basis that an abutter’s appeal to the Derry Zoning Board of Adjustment (ZBA) was untimely. In November 2012, Accurate Transport submitted a preliminary site plan application to the Derry Planning Board for approval to operate a “Dumpster Depot” business on property owned by Ashleigh Drive. The property is located within the Town’s Industrial III zoning district, which permits, among other uses, contractor’s yards and freight and trucking terminals. The Technical Review Committee (TRC) held a meeting to evaluate the proposed site plan and approved the proposed plan. Thereafter, petitioners filed a formal site plan application with the Planning Board. After numerous public meetings, the Planning Board ultimately approved the plan application. Several months later, an abutter to the property at issue, John O'Connor, appealed Planning Board's approval a few weeks after the Board's decision was issued. district, The ZBA concluded that the Town’s zoning ordinance did not permit the proposed use under any classification. After unsuccessfully moving for rehearing, petitioners appealed to the trial court and, subsequently, moved for summary judgment. Both parties moved for reconsideration, agreeing that the court erred by misapplying the time standards contained in the Town’s zoning ordinance. Observing that the written decision of the Planning Board was released on August 28, the court noted that O’Connor’s appeal (filed September 13) would be timely if he was appealing the final Planning Board site plan approval. However, the court concluded that O’Connor’s appeal did not challenge the Planning Board’s approval. Rather, the court found that O’Connor’s appeal challenged only the code enforcement officer’s determination that the proposed use of the subject property was permitted as a contractor’s yard. The court decided that the Planning Board accepted the code enforcement officer’s interpretation on June 19 when it voted to accept jurisdiction of the appeal. Because that vote was published on July 19, the court concluded that O’Connor had 20 days from July 19 to appeal to the ZBA. Given that his appeal was filed in September, the court determined that it was untimely. The Supreme Court reversed, finding the ZBA did not err by treating O’Connor’s appeal as an appeal of the August 21 decision. The trial court found, and the parties did not dispute, that the zoning ordinance provided a 20-day appeal period that began on the date of a written decision. Accordingly, the 20-day appeal period as to the August 21 decision began to run upon the issuance of the written decision on August 28. Because O’Connor’s appeal was filed September 13, it was within 20 days of August 28 and was, thus, timely.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.