Losing a Zoning War in New Hampshire

Home to Robert Frost’s farm and claiming to have grown the first potato in America, Derry, N.H. represents quintessential small town New England. Today, it’s also home to a quintessential zoning battle pitting the supposed best interests of the town against the rights of business owners.

Town Councilor David Milz doesn’t want an “auto mile” in Derry, and to make sure there isn’t one, he has proposed a 1,000-foot buffer zone on the town’s commercial Route 28 between any new auto-related business, including auto rental, gas stations, auto repair shops and auto dealers. Another proposal limits the building of single-family homes in the district.

The potential fallout for business and property owners such as Sheldon Wolff, who owns a piece of property on this strip as well as Blossom Rental & Leasing in a neighboring community, is a drop in property value. Wolff believes this is a taking of his property rights under the Fifth Amendment of the Constitution, which states in part that “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Wolff and others contend that limiting the use of the land would limit the buyers who would develop it. This assertion was backed up by a letter to the zoning board from an office of Prudential Realty: “(T)his rezoning would reduce the value of your property. … (A) more restricted zoning results in a reduction in the kinds and population of users who would be candidates for the future re-development of your properties.”

“We’ve all read numerous stories in other states how zoning boards with self-serving arbitrary dislike and no understanding of your business regulates it for their town or city without justification other than a whimsical ‘I don’t like it’ attitude,” Wolff wrote in an emailed letter to me, adding later in a phone conversation that the zoning board offered no proof that auto-related businesses are in any way detrimental to the town.

“As a landowner, part of your decision to buy something is based on the zoning at the time,” he said. “This buffer zone limits my exit strategy when the time to sell comes.”

Not all business owners are against the buffer zone. One car dealer is for it because it would prevent a competitor from moving in next door. But he’s being shortsighted, Wolff says, because he’ll still have a problem selling the land.

Further restricting development is the fact that this section of the commercial strip does not have a sewer system. Auto-related businesses such as car rental agencies or car sales lots don’t use enough water to need a sewer, so that’s why the strip attracts those types of businesses now.

However, the town says that an extension of the sewer system is planned. Business owners say that carrot has been dangled for a while, and if it does happen, Wolff thinks it could take 20 years.

Wolff isn’t taking this sitting down. He presented two petitions with more than 50 signatures of people and business owners against the buffer zones. And at one planning board meeting, in a move befitting Jimmy Stewart in a Frank Capra film, Wolff placed three shoes — a man’s dress shoe, a high heel and a work boot — on the speaker’s table. “Walk a mile in the business or land owners’ shoes before you make a decision like this,” he said.

But his plea is falling on deaf ears with organizations such as the National Automobile Dealers Association (NADA), who has refused to take up the cause locally. That support could have been crucial in swaying the zoning board, Wolff says.

Another “workshop” on the issue is planned for Jan. 16. After that, the measure will go to a vote of the zoning board. At this point, it looks like the buffer zone plan will win.

I don’t think it’s fair that the zoning board can change the rules to the injury of the businesses over which it has jurisdiction — especially without any real proof that a concentration of auto-related businesses would be detrimental to the town. Those businesses are economically sound and offer business growth and employment opportunities.

It seems that if the sewer does make it down Rte. 28, the area will be developed by natural selection, and the town should just leave it at that.
But what is one to do? The process of hearings, public comments and votes on the matter is part of a process happening across all of America.

There are no easy answers. Perhaps the business owners can get a guarantee that the sewer will be built along with a timeframe. Perhaps they can sue on constitutional grounds and demand compensation for the estimated drop in property values.

Have you faced similar seemingly capricious zoning decisions that have affected your businesses? Do you have any answers for Wolff, or ways to gain more leverage in his fight? If so, post on this blog and we’ll make the connection.

Originally posted on Business Fleet