Freedom—February 13, 2022—When Effingham’s ZBA voted to override the Groundwater Protection Ordinance and permit a prohibited use—a gas station—to be built in a former gravel pit above the aquifer, it poked a precedent-setting hole in hard-fought drinking water protections that could have a ripple effect beyond the town’s borders.
That the public understands this is evident from the reaction to Professor Bob Newton’s video about the issue. Using layman’s terms and high-tech graphics, Newton explained the science behind his assessment that the proposed site is the “worst possible location” for a gas station and would threaten dozens of residential wells, especially in Ossipee.
The video racked up more than 750 views in a matter of days and resulted in an outpouring of letters and emails to the town from across the region.
Among them was an email from a member of the Tamworth Select Board, and letters from the Town of Porter and Saco River Corridor Commission, both in Maine. Emails also came from Ossipee Lake property owners in Freedom and Ossipee who see the proposal as a threat to their drinking water and property values.
On Thursday, Concord-based NH LAKES issued an urgent alert to its members in Freedom, Ossipee and Effingham saying it was “concerned that spills and accidents at gas pumps with storage tanks in this location could result in groundwater contamination and pollution to the lake.”
In short, while the site is in Effingham, the potential threat is viewed as regional. It’s a situation the legislature anticipated when it enacted statutes for local boards in regard to Developments of Regional Impact, or DRIs for short.
Regional Impact Defined
The regional impact statutes require planning boards and zoning boards to determine whether an application might be a DRI, meaning it “could reasonably be expected to impact neighboring municipalities.”
Among the six criteria for regional impact—any one of which would require a DRI determination—are two that are relevant to the Effingham case: Proximity to the borders of a neighboring community (the property is on the Effingham-Ossipee border) and proximity to aquifers or surface waters which transcend municipal boundaries (the site is on highly transmissive soils in the most fragile part of the Ossipee Aquifer, which serves the region).
The statutes require boards to “promptly” make a DRI determination, and the default position is that “Doubt concerning regional impact shall be resolved in a determination that the development has a potential regional impact,” per RSA 36:56,I.
Once a DRI is declared, a board must notify the Lakes Region Planning Commission and any relevant municipalities within five days, and allow 14 days before setting a hearing date. DRI communities are granted limited abutter status, including the right to receive notices of meetings and hearings, and the right to give testimony.
A Potential Error
DRI guidelines published by the New Hampshire Office of Strategic Initiatives, part of the Executive Department of the Office of the Governor, state that DRI status should be established before a board rules that an application is complete, and before it sets a date for a public hearing. Those requirements are restated in Effingham’s site plan review regulations.
But the Planning Board appears to have erred in regard to the requirements. A review of the video recording of its February 3 meeting shows it did not discuss or rule on regional impact before it declared the application was complete and set a February 24 public hearing date.
Neither did it discuss a January 28 letter sent to the planning board by Attorney Biron Bedard, who represents Ossipee abutters in an appeal of last year’s variance approval. Bedard flagged the state’s DRI requirement as one of a number of reasons he believed the board should not accept the site plan as complete.
DRI requirements apply to zoning boards as well. As the ZBA reviewed Meena LLC’s application for a variance last year, town zoning officer Rebecca Boyden prompted a DRI discussion by pointing out the creation of the Aquifer Overlay District, where the property is located, was “a collaboration of six towns.” At the next board meeting, on July 8, she read aloud the criteria for considering regional impact.
The ZBA board chair at the time, Theresa Swanick, who also chairs the town planning board, said a regional impact letter regarding the gas station variance application was “not required but could be a courtesy,” according to the meeting minutes.
After further discussion, a motion to declare regional impact failed on 1-3 vote, with Swanick abstaining. Swanick later recused herself from the Meena LLC case at the ZBA, but continues to chair the planning board’s deliberations of the site plan application.
The failure of the ZBA to declare regional impact for the variance application last year is one of the elements of the appeal of the decision filed in October by abutting property owners, Ossipee Lake Alliance and Green Mountain Conservation Group. The appeal is pending in state court.