Courtesy of Conway Daily Sun
Effingham—February 15, 2022—Two environmental groups and abutters to a proposed gas station took the Effingham Zoning Board of Adjustment to court Friday over the ZBA’s granting of a variance for the station, which the groups say could harm drinking water in surrounding towns.
But lawyers for the town and gas station told Superior Court Judge Amy Ignatius that the ZBA made a thoughtful decision by granting the variance.
The case is Green Mountain Conservation Group, Ossipee Lake Alliance, William Bartoswicz and Tammy McPherson v. Town of Effingham and Effingham Board of Adjustment.
On Aug. 4, the Effingham ZBA voted 4-1 to give Meena LLC a variance to allow Meena to have a gas station at the former Boyle’s Market property at 41 Route 25 in Effingham. The property is just south of Leavitt Bay and southeast of Ossipee Lake.
According to opencorporates.com, Meena LLC was registered in 2016 as a domestic limited liability company type with the address 428 White Mountain Highway, Conway. There is one officer in this business, Pankaj Garg.
The environmental groups and abutters, Bartoswicz and McPherson, are challenging the variance. They argue that gas stations aren’t allowed in the town’s groundwater protection district.
The property has been used as a gas station for decades and the tanks were removed in 2015 by the previous owner. The plaintiffs say putting another gas station there threatens the Ossipee Aquifer, which is a large stratified drift aquifer and provides drinking water to 14 towns.
On Sept. 1, the groups filed for a motion for a rehearing; however, the ZBA denied their request on Sept. 28, so they sued. A hearing on the lawsuit was held over Webex on Feb. 11.
“The ordinance states how its purpose of protecting groundwater is to be achieved, which is regulating land use that may contribute to pollution,” said Green Mountain Conservation Group’s attorney, Biron Bedard of Ransmeier & Spellman of Concord.
“Certainly, a gas station may contribute to contamination of groundwater, especially if it’s located both over a stratified drift aquifer.”
He said the variance is “clearly contrary to the public interest” and “inconsistent with the spirit of the ordinance on its face.”
Attorney Matthew Johnson of Devine Millimet represented Meena, which is an intervenor. He said the ZBA had five meetings about this application and the ZBA already had ample opportunity to hear from the public. The ZBA also got “expert guidance” from the New Hampshire Department of Environmental Services and town counsel.
Johnson said that DES updated its gas station regulations in 2012, a year after Effingham created its groundwater protection district. Those standards would prevent any gas leak release into ground or surface waters.
He said the new gas station technology and DES requirements “outstripped” the need to ban gas stations. These new required technologies include double walled tanks, sensors and sumps.
Johnson also noted the ZBA required plans for spill prevention and cleanup as well as storm water runoff.
Ignatius asked if the town should just change its ordinance if gas stations are now built to be safe.
“One of the reasons for the variance is to allow for a use that has that where there is a conflict or a change in circumstances that makes strict compliance with the ordinance, something where relief should be given,” said Johnson.
“In the near term, the only remedy for the applicant is the variance request, which they sought and which the ZBA approved.”
Attorney Matt Serge of Drummond and Woodsome of Manchester represented Effingham. He said the ZBA did a “fantastic job.” He suggested Ignatius read the meeting minutes.
“The variance is a unique function, it’s there to allow a use that is otherwise prohibited in a particular zoning district, in this case, Groundwater Protection District,” said Serge.
“Cases are fairly legion in New Hampshire that simply because a zoning ordinance say you can’t do it doesn’t mean you can’t give a variance.”
Ignatius gave both parties until Feb. 25 to file their pleadings.