Freedom—August 9, 2021—Effingham’s Zoning Board of Adjustment on August 4th granted a variance to Conway businessman Pankaj “Prince” Garg for his proposal to install underground tanks and pump gas at Boyle’s Market, a convenience store on Route 25.
The variance provides relief from the town’s zoning ordinance, which prohibits gas stations in the Groundwater Protection District, where the business is located. The application will now be sent to the town’s planning board.
The decision to grant a variance caps a four-month process during which the ZBA approved and advanced the application to the planning board on March 29, only to have the planning board send it back to address the fact that gas stations are a prohibited use at the site.
The reversion to the ZBA resulted in public hearings on June 29, July 8, and July 20, followed by deliberative sessions on July 29 and August 4, at which time the ZBA once again approved the application and sent it to the planning board.
During the public hearings, the applicant’s agent, Mark McConkey of McConkey Construction in Freedom, and Theresa Swanick, who heads both the Effingham ZBA and the Effingham Planning Board, sparred over whether the town or the applicant had the responsibility to surface the issue that zoning prohibits gas stations in the Groundwater Protection District.
The hearings also revealed that realtor Jim Doucette, another of the applicant’s advisors, authorized installation of the gas tanks before the planning board had reviewed the plan and a building permit was issued. A cease and desist order was issued to halt the construction in May.
The convenience store’s previous owners, David and Lynn Boyle, operated a gas station at the site until 2015 when they made “an economic decision” to remove the tanks and equipment rather than bring them up to code. Garg bought the business from the Boyles this year with the intention of pumping gas again, saying he thought he had “an understanding” with the town that there were no impediments to applying to do so.
The gas station application sparked opposition from town residents and environmental groups who said the ZBA should have denied the application in March because it is contrary to the town’s Groundwater Protection Ordinance.
Opponents of the gas station pointed out the ordinance states that land uses permitted “by right or allowed by special exception” elsewhere in town are only permitted in the Groundwater Protection District if they are not expressly prohibited. Article 22, Section 2207-A (8) of the ordinance expressly prohibits gas stations in the Groundwater District, where Boyle’s Market is located.
A review of ZBA meeting minutes do not indicate that the board specifically discussed or ruled on whether the ordinance’s negation of special exception rights for gas stations in the Groundwater Protection District should have made the application moot. Instead, the board’s deliberations focused on whether the applicant could meet the ordinance’s five-part test for special exceptions.
The criteria of the test are: that the proposed new use falls within the “spirt of the ordinance” and is in the public interest; that “substantial justice” would be served by approval; that surrounding property values would not be diminished; and that the town’s decision would prevent “unnecessary hardship” to the applicant.
ZBA members differed on whether the previous owner’s decision to give up the gas station constituted “abandonment” as defined in the ordinance, and whether his motivation for the closure had a bearing on the current proposal. One board member questioned whether the gas station might remain a lawful non-conforming use, despite its closure, because the convenience store remained open.
At the July 29 deliberative session, ZBA member Mike Cahalane requested that Chairman Swanick ask Town Counsel Matthew Serge to meet with the board to discuss the abandonment and motivation issues. In an August 2 email to Chairman Swanick, Serge said it was his view that the gas station closure met the ordinance’s definition of “abandonment,” and the previous owner’s motivation was immaterial.
“Consistent with our telephone conversation, I do not find that the gasoline station use remains a protected, non-conforming use,” he wrote, adding a reminder that “a gasoline station (aka automobile service station) is expressly prohibited under the groundwater protection overlay district.”
The board’s August 4 deliberative session began with a complaint by Cahalane that Serge had sent an email instead of meeting with the board as he had requested. Board member Jim Pittman said he still had questions about the abandonment issue, and did not consider it to be “a closed case” since he didn’t fully understand the email.
In the final analysis, however, the board’s approval of a variance appeared to center more on Mark McConkey’s assurances that the proposed underground gas storage tanks were state of the art and “fail proof.”
Board member Cahalane said that since there used to be a gas station at the site and there is now “better technology,” he was inclined to support the application.
“This is not virgin property,” he said. “We have to consider its history and its benefit to the public.”
Pittman said the board was “upset” that the tanks were installed before the town issued final approvals, and he appealed to the new owner to make an annual donation to Green Mountain Conservation Group because “they test water in the area.”
“That would help me personally not feel so upset,” he concluded.
Board member Tim White, who was the lone ‘no’ vote in the proceedings, said he did not believe the vote to approve a variance should be unanimous. He said the applicant had failed to meet the hardship standard of the “five-part test,” an opinion he also expressed at the July 29 meeting. He described his ‘no’ vote as a “moral decision.”
While several people spoke during the hearings to say the project would have economic benefits for the town, a majority of the public comments were in opposition.
The board of Ossipee Lake Alliance wrote that both parties should have been familiar with the ordinance’s prohibition against new gas stations—the ZBA because some of its members helped secure voter approval for the provision a decade ago, and the applicant’s advisors because they have years of experience in the highly-regulated world of gas stations, including local experience.
“We sympathize with the difficulties the parties face in this matter,” the group wrote, “but residents of the six towns that rely on the aquifer for their drinking water are counting on the ZBA to do the right thing” by rejecting the application.
Billie Lunt of near-by Storage Road asked the board not to yield to those who “ask for forgiveness, not permission,” referring to the prematurely installed underground tanks. She said the proposed economic benefits could turn into the opposite because of the potential threat to the area’s water resources.
Dr. Robert Newton of Smith College, who has studied the Ossipee Aquifer since 1974, focused on the close proximity of houses that rely on domestic wells for drinking water, concluding in a public letter that approving the application would “show a wanton disregard for the health and safety of nearby residents.” A similar conclusion was reached in another public letter by the president and executive director of the Saco Headwaters Alliance, which is based in Conway.
During the hearings, the applicant’s advisor McConkey made the case that the requirements of the “five-point test” for a special exception had been met. In a subsequent letter to the board, local environmentalist Corey Lane offered a point-by-point rebuttal that they had not been met.
In a letter to the ZBA opposing the gas station as inconsistent with the ordinance, the executive director and staff of Green Mountain Conservation Group said the applicant had not only failed to demonstrate that the ordinance created unnecessary hardship, he had “manufactured” his own hardship by installing the underground storage tanks without approval or a permit.
“The applicant has explicitly acknowledged that they made a calculated business decision to develop the property without town permission,” the group wrote.
“Sanctioning this degree of impropriety would set a worrisome precedent, disrespectful to the voters and to all those who dutifully adhere to the Zoning Ordinance.”
The zoning board’s decision notice reads: “We, the Zoning Board of Adjustment, have determined that the 8/4/21 decision granting a variance falls within the Spirt of the Ordinance and Public Interest, that Substantial Justice is served, and Surrounding Property Values will not be diminished. Further, this decision prevents Unnecessary Hardship to the applicant.”
Minutes of the August 4 meeting have not yet been published by the town.