Court rules in state’s favor
Waste management plant had proper permits, verdict says
GREENVILLE — A dispute between a local company and the N.H. Waste Management Council has been settled at the State Supreme Court-level. Yesterday, the court issued an opinion ruling, stating that Pioneer Point Enterprises, a Greenville waste management facility, was properly permitted at the time it was constructed, despite the objections of an abutting business that argued the permit was wrongly issued.
The opinion upheld an earlier decision from the N.H. Waste Management Council, which had, in its turn, upheld a determination by the N.H. Department of Environmental Services to grant a permit to Pioneer Point Enterprises to build a solid waste facility on Old Wilton Road in 2008.
At the time, Pioneer applied for a permit to operate a solid waste management facility in an existing structure next to the Souhegan River. Initially, the permit was denied by DES on the grounds that the proposed facility was within the 250-foot setback from the Souhegan River. Six months later, Pioneer submitted an amended application. The new plan proposed dividing the existing building into three units and using only the center unit, located beyond the 250-foot setback with room to spare, to manage solid waste.
According to the Supreme Court’s opinion, both sides agree that while approval of the permit was pending, Pioneer began work on the building, installing new bathrooms, windows, insulation, flooring, roofing, a new water meter, and renovating electrical and fire systems. DES issued Pioneer a permit to operate, as well as a waiver to build a new access driveway within 50 feet of an abutting property occupied by Old Dutch Mustard Co. Inc, a mustard and vinegar manufacturer.
According to the court’s ruling, Old Dutch Mustard Company appealed the issuance of the permit and waiver to the N.H. Waste Management Council, arguing that the facility was still within the 250-foot setback from the river, that the council did not take into account the impact on Old Dutch Mustard when granting the driveway setback, and that DES should have denied the permit based upon Pioneer’s pre-permitted construction work. The Council denied the motion for rehearing filed by Old Dutch Mustard Inc., which then turned to the courts for the appeal process.
The N.H. Supreme Court found that because there was no legislative guidance as to the intended meaning of the term “facility,” the Council’s interpretation of the center unit as the facility was reasonable. The purpose of the setback is to protect the river, and none of the solid waste activities that might pollute or harm the integrity of the river would occur in the setback. Although the Council acknowledges that Pioneer did engage in construction activity prior to the approval of the permit — which is not allowed by statute — DES and Pioneer contended that none of those activities involved solid waste collection or management. And state statute does not require DES to reject the application based on that construction, the court ruled.
Old Dutch Mustard argued that the steps taken to determine whether Old Dutch Mustard would be negatively affected by having the driveway within its setback were not sufficient. DES should have interviewed Old Dutch Mustard Representatives, performed a traffic impact analysis, and analyzed whether locating the driveway would interfere with Old Dutch Mustard’s shipping, the company argued, according to the opinion.
The court also ruled that the Council had taken into account the impact the driveway, which is within the 50-foot setback of the Old Dutch Mustard Company’s property, would have on Old Dutch Mustard. It had found that the driveway would potentially be beneficial for both properties, as it provided access for fire vehicles to a hydrant. It is also a safer point of access for Pioneer, as it is less steep than the existing driveway, the Council had found. DES is not required to interview the abutters or perform any traffic impact analysis. DES may grant the waiver from a rule, such as the driveway setback, if the impact on an abutting property isn’t more significant than complying with the rule. Traffic impact would be similar no matter where the driveway is located, according to the ruling, so it can not be a concern.
Additionally, the court ruled, although Old Dutch Mustard provided a traffic expert who argued the proposed driveway layout was inadequate to allow proper vehicle maneuvering, Pioneer also presented information on traffic flow that offered the opposite opinion. The Council is entitled to rely on the traffic information provided by Pioneer as part of its application, the court ruled.
Calls to representation for Pioneer Point Enterprises, NH DES and Old Dutch Mustard were not returned by press time Wednesday.
Ashley Saari can be reached at 924-7172 ex. 244, or firstname.lastname@example.org. She’s on Twitter @AshleySaari.