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Friday, February 20, 2009

Residents of two towns oppose Atkinson trucking facility

From the Eagle Tribune;

Residents of two towns oppose Atkinson trucking facility Residents have lined up lawyer, sound expert if they lose decision
By Eric Parry

ATKINSON — A proposed 24-hour trucking facility on Industrial Way has drawn anger from residents from two communities who believe it will bring noise and pollution to their neighborhood.

The Planning Board has yet to take action, but heard from abutters and the owners of P.J. Murphy Transportation Inc. for almost three hours Wednesday night about a proposed trucking facility at 16 Industrial Way.

The board split, 3-3, Wednesday and is scheduled to discuss it again on March 4. Wednesday's meeting was the third time the project was discussed.

Before the next meeting, Chairman Sue Killam said the board needs to review more information about how much sound would come from the proposed facility. The town had requested a sound study, funded by the applicant, but did not have all the requested information available Wednesday, she said.

Board Vice Chairman Paul DiMaggio, who voted against the plan, said the facility would absolutely cause problems for neighbors because it will be busiest during early morning hours.

"Noise to neighbors is the most crucial thing," DiMaggio said. He said the trucking facility doesn't fit in that part of the community, which is zoned for commercial and industrial use. The town's zoning regulations specifically identify what is allowed in the zone and the trucking facility doesn't meet the requirements, DiMaggio said.

Killam declined to comment on that, but said the board had resolved that issue at previous meetings and it was no longer a reason to deny the project.Jim Lundt of Deer Run Road in Atkinson said his home is within 1,500 feet of the proposed facility. He said he would be woken up in the middle of the night with trucks pulling in and out of the facility around 3 a.m.

The plan was changed Wednesday night to include an 8-foot berm that would surround the property to muffle sound. But neighbors say they have little confidence that would do anything to help them.

"An 8-foot berm doesn't come between the sound of the noise and our bedroom windows," said Christine O'Hara Tremblay, of Christine Lane in Salem.

Tremblay said her greatest concern was that trucks could spill fuel and it would leak into the ground. The property is partly surrounded by wetlands and all of the homes in the area get their water through wells, she said.

The plans only call for the ground to be gravel and not pavement, but DiMaggio said he expects that issue to be corrected at the next meeting.

Killam said there shouldn't be any concern about fuel spills because the trucks won't be filled with fuel. Keith Wolters of Christine Lane in Salem said if the Planning Board approves the facility, he and a group of about 15 residents plan to challenge that decision. They have already hired their own sound expert to review the plan and have hired a lawyer to explore their legal options.

"We just don't want our home values impacted," Wolters said. "We don't want our lifestyles impacted."


tim dziechowski said...

The newpaper article refers to an 8 foot berm which would surround the property. Let me comment as a planning board member who was at the hearing...this is not what the applicant proposed. The berm would be built at the back of the truck parking area, between the trucks and the closest residential abutters in Salem.

There would not be any berm on the sides or front of the property, so the berm would do nothing to reduce noise for the Atkinson residents on Deer Run Road.

Anonymous said...

"Killam said there shouldn't be any concern about fuel spills because the trucks won't be filled with fuel."

What is the basis for this statement? Will the company swear to that, or is it just a nod, nod, wink, wink so Killam can push it through?

If fuel is carried, and it leaks (and, it would happen eventually) this adds a new worry to aquifer which is already under attack from another Planning Board member. How does he feel about this potential pollution to his source of income?

tim dziechowski said...

Murphy's business is fuel hauling. Their customers order heating oil and or gasoline from depots in Dover NH, Revere MA, Portland ME, and RI. Murphy sends a truck to pick it up and deliver it to the local oil company or gas station's tanks.

The amount of fuel is metered both when the truck is loaded and when it is unloaded. Murphy's customers aren't going to tolerate not getting what they paid for, so the tanker will be empty after the customer delivery.

The planning board would impose no fuel storage as a condition of their site plan, and they could be shut down for violating it.

The only time when there might be a tanker with fuel in it is if a truck or tanker has mechanical problems and has to be brought in for repairs.

I am not comfortable with that and will contact NH DES and see how they regulate that.

Anonymous said...

Tim, be wary when dealing with the DES. They are largely responsible for the water mess we're in now. Their attitude has shown they feel they know what is best for us, no matter how we feel about it.

You might also want to research the DES's response to the overturned oil truck incident that happened several years ago at the corner of Main and Pages LN. Their initial response was good, their promised follow-ups never happened.

The DES is a prime example of the old joke, "Hi, we're from the government and we're here to help you."

tim dziechowski said...

I have researched the oil spill at Main St. and Pages Lane. The cost to clean it up was in excess of $80,000, and DES paid for it out of emergency funds. They later tried to collect from the owner/operator of the truck. He had wanted to make good but had a heart attack and ended up going out of business.

DES consists of around 20 separate bureacracies inside one agency. I am no happier than anyone else in town about the DES water withdrawal staff and their state imposed mandate to allow large water withdrawals. However, they answer to a higher authority: the Wetlands Council. So far, the Wetlands Council is not allowing major withdrawals from prime wetlands...

Anonymous said...

As I said, initial response was good. However, they promised to monitor the site. They haven't been seen since. That is the basis of my caution

I curious on your take regarding the Midpoint site, particularly because it is surrounded by the largest number of homes.

From what I've read, when Lewis built Centerview Hollows off of Meditation, Lewis made an agreement with the town to set aside a chunk of land as conservation land. To me, that means, leave the land alone. Hands off, do not touch. How did it happen this designated conservation space became the Midpoint well site? I believe Midpoint is also partially surrounded by wetlands.

In your view, are my facts right? If so, how could the DES let this happen?

I'm not trying to corner you or anything like that. You have consistently shown you know the whole story when many of us only know part of it. You have a repository of institutional memory that I wish we could download.

Anonymous said...

How can the board impose a no fuel storage as a condition to this site plan or any other site plan that meets all of the regulartory requirements? Tim pointed out that these trucks MAY have to be brought back for repairs when loaded with fuel from time to time and is uncomfortable with that. What is he proposing that all repair shops in atkinson be restricted from working on loaded tank trucks or just this site. I have watched all of the hearings and i'm shocked by the way this company is being treated by some of the board members with there vulgar language ( you know who you are ) Something doesn't smell right here. I'll just keep watching till I figure out what's really going on here.

Anonymous said...

When you purchased a home abutting a Commercial/Industrial property, what did you expect would be there?

Anonymous said...

First of all, I think as Atkinson residents, we have shown our neighbors in Salem respect by allowing their voices to be heard. That being said, there are only, I repeat only 2-3 residents of both Atkinson & or Salem that are actual abutters of the proposed site. This means that all others have no standing in this matter. The term abutter under NH Planning and Zoning General Provisions is described as follows:672:3 Abutter. – ""Abutter'' means any person whose property is located in New Hampshire and adjoins or is directly across the street or stream from the land under consideration by the local land use board. For purposes of receiving testimony only, and not for purposes of notification, the term ""abutter'' shall include any person who is able to demonstrate that his land will be directly affected by the proposal under consideration. Clearly none of the abutters as well as the other residents in Salem and Atkinson that have been allowed to speak too much have not demonstrated an ability to show that they will be effected by the proposed Transportation Company. I am stating this because I have not heard one time during these proceeding of a Transportation Company already in exsistance in the business of transportation of gasoline and home heating oil located at 6 Industrial Way in Atkinson under the name of GARDNER TRANSPORTATION. They have a legal business permit issued by Atkinson and they have been located there since April of 2008 conducting the same exact business profile and operation as PJ Murphy, the company in question, during the same 24 hour operation that PJ Murphy operates under as well as Ermer Gas and all the other transportaion companies providing gas to stations so that that you can get to work in the morning and heating oil to your homes and business to keep you and your families warm.

Getting back to the abutters and Residents that are not abutters. Now clearly your argument over noise of trucks, not being able to leave windows open in the summer while sleeping on the second floor of your homes, decibles, sound barriers, etc... carry no weight at all. Gardner Transportation, being in operation since April of 2008, also in operation probably 1000 yards closer to the residents and abutters,through the summer and up to this point, the abutters and residents either played like that company does not exsist or in fact they really don't know Gardner Transportation exsists, therby showing they can't hear any trucks what so ever from a company closer to them and certainly have not been any issues with spills or their 24 hour operation.

This brings me to another point. Vice Chairman Paul Dimaggio has stated he knows a little about decibles and sound. Well, come to find out, he is President of a company that deals daily with sound barrier materials, but yet has never let it be known that this is an area that is probably a conflict of interest for him. The possible benifit to his company and the selling of sound barrier material for a site plan that he strongly supports sound barrier and clearly should abstain from voting on that issue. Also Dimaggio had mentioned the intent of the industrial Park years ago was to allow Atkinson based home busness' to expand. You as a planning board as obligated to the zoning rules and regulations as set forth and you are not allowed to make decisions based upon what you believe was or is the intent. You are there to make your decisions strictly on what is black and white on the pages before you. And oh, by the way, because it clearly does not state for the expansion of home based ATKINSON business's, PJ Murphy transportation is a home based business attempting to expand. PJ Murphy's Office is located in his home in Methuen, MA. You would know this if you did any research at all.

It is always "Buyer be aware" when buying real estate. Abutters claimed to have done their homework 20 years ago, but clearly did not.

Ermer Gas, Oil & Propane has deliveries at all hours of the day and evening including between 12:00 AM and 6:00 AM, but according to the abutters and residents, that doesn't count.

We in Atkinson, like many other communities are struggling with financial issues and residents especially from another community is attempting to prevent increased property tax revenue, trailor and power unit registration revenue for both the town & State, much needed good paying jobs & beautification of the exsisting property during the worst economic times since the great depression. Something is very wrong with this whole process that has taken place.

Not that PJ Murphy has applied for Fuel Storage, but that is strictly regulated by Environmental Services at the state level, not local and you had better haul Ermer, Gardner and every other garage and repair facility in for the same illegal restriction.

This is crap and I am sick and tired of business as usuall in politics including planning boards in Atkinson. Something Serious Stinks here and I am calling into question specifically Paul Dimaggio's conduct during these proceedings. When the petition meets all zoning rules & regulations as set forth by the town and their are other companies within the same industrial park performing the same work and operating the same hours, but yet their is a question of getting approvals.

Just remember, any legal action taken I am sure will be met with counter lawsuits. I would rather have money coming in than going out. I am sure the abutters and residents would rather not go bankrupt during such an action.

Please lets put our best foot forward, be smart and do the the right thing.

Anonymous said...


tim dziechowski said...

To anon@2:59

DES is not monitoring the Pages's Lane oil spill site because they hired a company to clean up the spill and they did...remediation is complete.

The Midpoint well and Centerview hollows open space happened before my involvement with both the PB and conservation commission. I can tell you that under our zoning, cluster open space is held by the developer until there is a homeowner's association, which then takes over the open space. The developer usually reserves access rights for utilities and water infrastructure. DES has no role in enforcing our open space conservation restrictions...only in wetlands protection. My understanding is that Peter Lewis applied for a major dredge and fill permit to put a road in over the wetlands to get to the island and drill the well. The then conservation commission had a site walk and voted to sign off on the permit with DES. I don't know if the well happened first or the open space happened first.

To anon@4:33

The PB can impose a no fuel storage condition because fuel storage (by which I mean bulk tanks) is not a permitted use in any zone in Atkinson. We have exclusionary zoning, so any use which is not specifically permitted is disallowed. When Murphy first came in to talk to the PB he was interested in having aboveground bulk fuel storage tanks on the site.

To anon@6:36

The homes on Christine Lane in Salem were developed by Steve Lewis in the late 1980's. A lot of the buildup on Industrial Way is more recent than that. So the Salem neighbors did not necessarily know what they were moving next to.

To anon@10:35

The PB is taking comments from anyone within earshot of the potential trucking noise. Their land most certainly is impacted by this application.

Palmer Gas is grandfathered because it was there before zoning. It also does not operate overnight at anywhere near the level that PJ Murphy would.

I did not know about Gardner Transport. They are operating 4 trucks and 4 employees out of a condo unit (6 Industrial Way Unit 2). Less than a third of Murphy's volume and the trucks are indoors. They were not required to file a site plan and did not obtain an occupancy permit. For all anyone in town knows they could be transporting nuclear waste. Their business is listed as "trucking", not "trucking terminal". The fact that they could just file a business permit and open shop says to me that we have a process problem in the planning office that needs to be fixed.

Fuel storage (bulk fuel) is regulated at the local level as well as the state level because our zoning disallows it. If any company has a problem with that they can go to the ZBA. There is in fact a disagreement on the PB (4 to 2 split) on whether a trucking terminal is a permitted use. No matter what the PB decides most likely either the abutters will sue or the applicant will sue and the courts will decide.

Paul DiMaggio and His father Dom (yes, the Red Sox outfielder and Joe's brother) have a business manufacturing fabric products, mainly soundproofing underlayment for cars. There is no application for building or outdoors soundproofing and no possible conflict of interest.

To anon@3:34

Wait until the Haverhill commuter rail moves north one stop. BIG TWAINS.

Anonymous said...

Tim is using his fuzzy math again. Gardner operating 4 trucks with 4 employees somehow is one third the size of PJ Murphy's 6 trucks and drivers durings the day and drivers at night. Your statement about Gardners trucks being inside is a good one. NOt sure where you obtain your information, but pictures can be provided to the contrary. They are still a 24 hour operation coming and going at any given time of the day & night hauling gasoline and home heating oil. Also there is a trucking company across the street from the proposed site operating 24 hours a day box trailers moving equipment for staging. Once again no complaints or comments regarding these companies operating the same hours and in 1 or more cases, the same petrolium products. Have never heard anything from abutters, residents or planning board about noise from these companies and their trucks.

Tim, by the way, no on site storage and Ermer is grandfathered because he was there prior to zoning. I have been around the real estate industry 25 plus years and I would be willing to bet that is not the case. Certainly did not have the kind of facility he has now. Whenever there are upgrades and improvements, thay are supposed to fall under current zoning rules & regs. Somehow, there tanks out back were installed beyond the 750 foot boundry allowed, but yet no varience required. Business as usual, right. Please, presidence is and has been set. To deny PJ Murphy the same uses and hours of operation would certainly be a crime.

Also, do you think Dimaggio still has a conflict because he lives in that area and again does not make any mention of that.

Seems to me, with Dimaggio being on the planning board for 25 years is a clear example of why there should be term limits.

The planning board took a vote based upon the building inspector stating that it is a permitted use, the vote was 4-2 in favor. There is no question.

For an appeal to take place, not only does the board have to vote to accept the appeal, it can only be appealed as on a matter of law.

None the less, good luck.
Best Wishes

Anonymous said...

In the 21st century, we live in not only a global economy, but a 24/7 365 day a year economy.

I live locally and work at UPS. Is the town going to restrict the time I can leave my house in the morning to go to work. I have to leave my house anywhere between 2:30 am & 3:30 am, depending upon the time of year. Typically, I start my vehicle to warm it up in the winter.

Seems to me some people put in positions of making decisions in town(s) overstep their boundries and are not looking out for the best interest of the town, but themselves and other interests.

As a PB member, stating that Atkinson has exclusionary zoning is very dangerous water to be treading.

tim dziechowski said...

"As a PB member, stating that Atkinson has exclusionary zoning is very dangerous water to be treading."

Exclusionary zoning is not an opinion. It is a precise legal term. Our land use regulations have a table of permitted uses for each zone in town. Our zoning section 250:1 states "Any use not specifically permitted by these regulations shall be deemed prohibited." We have exclusionary zoning because the Town of Atkinson voted to have it in 1982, not because of anything I say or don't say.

The PB's role is limited to ensuring that an application complies with our regulations. If an applicant wants to do something that is prohibited by our exclusionary zoning, they can go to the zoning board of adjustment, who may or may not grant a variance.

Anonymous said...

Its ok to get off track a little. I appreciate your thoughts on the exclusionary zoning, but you couldn't be more wrong. Exclusionary zoning has come to be applied to local zoning measures that appear to impose unnecessary or unjustifiable costs or requirements facially or by execution excluding various groups of ‘undesirables.' Before the 1960’s, these measures were generally seen as a means to maintain or improve living conditions, community, open space, aesthetics, etc. It wasn’t until relatively recently that courts turned away from local interests to regional impact on housing holding exclusionary zoning to be unlawful in certain circumstances. "Inclusionary zoning" refers to municipal and county planning ordinances that require that a given share of new construction be affordable housing for people with low to moderate incomes and is derived to counter exclusionary zoning practices. Have a good and safe weekend.

Anonymous said...

Wow Atkinson is really messed up. I have tuned in from time to time and watched the applicant and neighbors participate in this matter, but wonder who is listening. I took a drive through the industrial park and it is disgusting. No wonder neighbors complain....where is the planning in planning board. Half the industrial park looks more like dumping ground and a series of unfinished buildings.

Regardless, I really do not understand why in the world the Planning Board accepted this item anyway, it should have been sent to the ZBA first. Isn't it more important to dot all our I's and cross all our T's. As tax payers we need a planning board that protects its' citizens and property owners. This board does neither well. The town is going to have another lawsuit to defend and our tax money wasted.

Selectman should clean this board up. The planning board should be following the land use rules on the books not creating their own challengable interpretations on the fly. Only the ZBA should be dealing with grey areas not a planning board.

This is real business and costs real money to the town.

I don't know about most of the community, but I am sick and tired of seeing my tax dollars being wasted by poor planning.