By Kathryn Marchocki, Granite State News Collaborative

March 12, 2024

A Nashua company whose proposal to build an asphalt plant in one of the city’s oldest industrial districts was rejected last year by the Planning Board is persisting in its battle in Hillsborough County Superior Court.

In an appeal filed last year in Hillsborough County Superior Court, 145 Temple Street LLC-Greenridge LLC — an entity formed by Newport Construction Co. — seeks to reverse the Planning Board’s denial of its site plan application. The court’s new Land Use Review Board scheduled a July 15 hearing on the merits of case.

Last June 15, the Planning Board voted to block Newport Construction from building an asphalt plant at 145-147 Temple St. in one of the Gate City’s oldest industrial districts – a site where the company has been operating a highway road construction company for nine years. The proposed plant’s location is a key to both the company’s appeal and the city’s defense of the Planning Board’s decision.

Meanwhile, the New Hampshire Department of Environmental Services’ Air Resources Division is continuing to review the company’s air permit application to determine if the proposed asphalt plant would meet all applicable state and federal air pollution standards, division administrator Catherine Beahm said at a Feb. 12 public information session in Nashua. If DES finds the plant can be built and operate in compliance with these requirements, it will issue a draft permit, which will be followed by a 30-day public comment period and public hearing. 

The two proceedings -– while taking place simultaneously -– are separate. The result of one will not impact the other, though the plant’s owner would need to prevail in both venues to move forward with the project.

“These are two separate requirements. The city’s decision to deny the application before the Planning Board does not impact the state’s review of the application for the air permit. In addition, the state’s decision on the air permit application does not change the Planning Board’s decision,” Beahm said, according to a recording of the information session.

The Planning Board’s vote last June 15 to block the proposed plant followed considerable opposition from residents, who claimed it would emit harmful emissions, odors and increase noise and heavy truck traffic in their neighborhoods. It would “devastate the neighborhood, and plunge property values for miles surrounding the plant, and permanently undermine the goal of the Master Plan to revitalize the area,” the city wrote in its response to the appeal.

The DES Air Resources Division currently is conducting a “technical review” of the permit application, which includes reviewing emission calculations, said Padmaja Baru, the division’s new construction and planning manager. She could not estimate how long the review would take.

If the proposed plant is approved, it would become the 27th hot mix asphalt manufacturing plant permitted to operate in New Hampshire and the eighth to be based in a city, according to DES air permitting data. City-based asphalt plants currently are located in: Keene, Lebanon, where there are two, Concord, Franklin, Portsmouth and Rochester, according to DES.

Hot mix asphalt

Noting considerable public interest in the proposed plant, DES officials said they held the information session to explain how it evaluates an air permit application and identify criteria outside their regulatory authority, such as traffic, noise, truck exhaust and odors. 

Those attending the Feb. 12 session expressed concerns about possible adverse health effects from the air pollutant emissions from the plant, questioned how carefully emissions would be monitored, and the prospect of large trucks idling on the property and traveling on city streets. 

“This proposed plant is not in my area. It doesn’t mean that it doesn’t concern all of us in the city,” said state Rep. Susan Elberger, who represents Ward 1.

Baru said state law requires DES to review all air permit applications. Given public interest in the proposed plant, DES asked for and was granted an extension to review the application, which was filed Jan. 30, 2023, Baru said. 

Hot mix asphalt is used as paving material for road. The paving material is a mix of approximately 95 percent gravel, sand and stone that is bound together by asphalt cement. Asphalt cement is a product of crude oil. It is heated and combined with the gravel, sand and stone mixture at a hot mix asphalt facility. The hot mix asphalt is loaded into trucks and taken to a construction site.

Asphalt plants must meet all state and federal health-based standards to contain toxic air pollutants “at the property boundary of the facility and beyond,” and conditions to do so would be written into any draft permit, Baru said.

“People living near a hot mix asphalt plant might smell odors from the plant. However, the risk for adverse, or bad, health effects is very low,” according to the DES fact sheet.

Additionally, Baru said DES maintains about 13 air quality monitoring stations throughout New Hampshire, including one in Nashua. Of the other 12 monitoring stations, the two closest are in Londonderry and atop Pack Monadnock, southeast of Keene. The stations monitor particulate matter, ozone levels, carbon monoxide and nitrogen oxide. 

If DES grants the proposed plant a draft permit, it would be followed by a 30-day public comment period and a public hearing, Baru said. A final decision would later be issued which either side could appeal to the state Air Resources Council. 

Dueling arguments

The four-acre145-147 Temple St. site where the proposed asphalt plant would be located is located near the center of one of Nashua’s “oldest and largest General Industrial zoning districts” where “asphalt manufacturing is a use expressly permitted by right,” attorneys for longtime Nashua resident Richard A. DeFelice said in his July 17, 2023 appeal of the Planning Board’s decision. DeFelice is president of 145 Temple Street LLC and Newport Construction Corp., a highway road construction company that has been operating at 145 Temple St. since 2013. He did not respond to several requests for comment.

The appeal petition called the Planning Board’s ruling unconstitutional, unreasonable, unsupported by the evidence and the result of multiple errors of law and fact.

In denying DeFelice’s site plan application, the Planning Board said the plant was inconsistent with the goals and objectives of the city’s master plan; would generate excessive traffic that would be qualitatively different from vehicles that serve existing industries and businesses; and that it is inconsistent with surrounding residential uses and the “transitioning nature of the neighborhood” towards residential uses.

Attorneys Jennifer L. Parent, John F. Weaver and Thomas W. Hildreth of McLane Middletown law firm in Manchester, who represent DeFelice, maintain the Planning Board ignored the law and advice of the city’s planning staff concerning the limits of site plan review when applied to a permitted use while erroneously elevating the function of the master plan. 

The 43-page appeal petition also claimed the board “impermissibly engaged in ad hoc decision making, simply deciding that it does not like the proposed use despite the facts that it is expressly permitted under the zoning ordinance, fully compliant with the terms of the zoning ordinance, and substantially similar to numerous current and recent industrial uses in the district.” 

The appeal sets the stage for a classic test between a planning board’s ability to place restrictions on allowed uses so they better fit in a neighborhood versus denying a use because the board or community doesn’t like it.

“There is a difference between, ‘We don’t want this in our town. Keep it away, Planning Board.’ And, ‘You need to look closely at these particular issues involving traffic, fumes or things like that’,” says Roy W. Tilsley Jr., an attorney with the Bernstein Shur law firm in Manchester who specializes in land use law but is not involved in the asphalt plant case. 

“These are arguments that go to the limits of what the Planning Board can and can’t do. They are the right type of arguments for an appeal like this,” adds Tilsley, who has been working with land use issues for more than 30 years.

Tilsley, who notes he doesn’t know if the facts of the case are true and cannot predict its outcome, adds: “the appeal document articulates a reasonable basis for appeal … Here they have a leg to stand on.”

The Newport Construction Corp. petition cites more than a dozen current and recent industrial and commercial companies operating within a half-mile of 145-147 Temple St. They include Newport Construction, Ripano Stoneworks, Inner City Materials and Speedy Junk Removal. Additionally, Redimix Concrete operated its concrete batch plant at nearby 16 Commercial St. for more than 50 years, ending in 2018, the appeal says. These companies rely on large commercial dump trucks and other multi-axle vehicles to deliver product to and from their sites just as an asphalt plant would, the appeal claims.

It also claims the Planning Board’s ruling rested in many errors. They include ruling that the proposed plant is inconsistent with the surrounding residential uses, ignoring the district’s decades-long history of functioning as a mixed-use neighborhood with industry, housing and commerce co-existing compatibly. They board also ignored evidence that the plant is a permitted use that is fully compliant with the zoning ordinance, will not produce excessive odors, dust or fumes and will operate in compliance with air permit conditions issued by DES’ Air Resources Division.

And the petition claims the city erroneously applied Transit-Oriented Development overlay district (TOD) requirements to the site plan review. The area does not have a transit station, which is required for the area to be considered a TOD overlay district, the appeal says.

The city denies this – and other claims – in its response to the appeal. It notes there is a “bus stop directly in front of 145 Temple Street,” and that there are “numerous transportation routes, systems, facilities and resources in and around the District.” Nashua City Transit routes show one bus route – the Nightside North route – stops at or near 145 Temple St. 

The city’s claim that 145-147 Temple St. lies within the TOD appears to be a key argument for denying the site plan. The city notes that combining the requirements of the General Industrial zone and TOD overlay district “imposes on the petitioner the obligation to demonstrate that its proposal meets the underlying standards in the Industrial Zone and simultaneously that it meets the criteria applicable to the Transit-Oriented Development Overlay District,” attorney Robert L. Best of Sulloway & Hollis law firm in Concord wrote in the city’s response to the appeal petition. These include compliance with the city’s Master Plan, ensuring the proposed plant is harmonious with existing and future surrounding development and will not harm property values, Best wrote in the city’s 26-page response to the appeal petition.

“While an asphalt manufacturing plant could be a permitted use in the General Industrial Zone, that fact does not end the Planning Board’s authority to apply all of its applicable site plan and zoning standards. The Board ultimately decided that the Petitioner failed to meet the requirements of the General Industrial Zone as modified by the Transit-Oriented Development Overlay District,” Best says.

The appeal also alleges the process was “tainted” by “improper and undue influence” by the office of Mayor Jim Donchess, which publicly opposed it, urged the Planning Board to deny it, spent public funds on opposition research and “applied undue pressure on the professional planning staff.” 

While the city acknowledged the mayor issued a public statement Dec. 1, 2022 opposing the proposed plant, it denied all other allegations. The mayor serves as an ex officio member of the Planning Board and appoints all board members, Best says. “Nothing in that process requires that the Mayor refrain from having opinions about projects proposed before the board,” he writes, adding the mayor recused himself from the proceedings.

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