Effingham—May 16, 2022—When Effingham’s ZBA granted Meena LLC a variance for a gas station, did the decision trigger the need for the applicant to apply to the Planning Board for a Special Use Permit in addition to obtaining site plan approval?

Northpoint Engineering thinks so. The Concord-based company was commissioned by the town’s Planning Board to conduct an independent review of the site plan after the Lakes Region Planning Commission questioned the “adequacy” of the materials, which were developed by Meena LLC agent Mark McConkey.

The ZBA last year granted Meena relief from the gas station prohibition in Article 22, Section 2207A(8), of the town’s Groundwater Protection Ordinance. But Northpoint said in its independent evaluation that Article 22 contains “other sections that would appear to apply” to the development.

In particular it cited Section 2208, which grants the Planning Board authority over Special Use Permits to govern the “storage, handling, and use of regulated substances in quantities exceeding 100 gallons.”

“We are not aware that the applicant has applied for a Special Use Permit from the Planning Board, but it would appear that one is needed,” Northpoint wrote, recommending that Meena complete an application.

A Special Use Permit, if granted, would require the applicant to comply with a list of ordinance-defined Performance Standards, identify “stormwater infiltration practices and depths to the average seasonal high-water table,” and provide a “narrative description of maintenance requirements that shall be recorded at the registry of deeds,” among other requirements.

In letters to the Planning Board, Meena LLC’s attorney, Matthew Johnson, and the attorney for abutters to the Meena property, Biron Bedard, stated their clients’ positions on the issue.

In his letter, Attorney Johnson argued that Northpoint is “legally incorrect” on the issue. A Special Use Permit applies to a use that is otherwise permitted in the underlying district provided that it is not a prohibited use. Since gas stations are prohibited, and since Meena LLC obtained a variance for the otherwise prohibited use, “the special use process is inapplicable,” he wrote.

In response, Attorney Bedard pointed to Johnson’s argument as “precisely the reason” that Meena needs to obtain a Special Use Permit.

Bedard argued that when Meena LLC obtained the variance for the site, it effectively turned a prohibited use into a permitted use, which made it subject to Section 2208 pertaining to Meena’s plan to store and handle regulated substances in quantities exceeding 100 gallons.

“If Meena wanted to be absolved of the requirement to obtain a special use permit, they should have sought a variance from the special use permit requirement,” he concluded.

Despite objecting to Northpoint’s Special Use Permit recommendation, Meena’s attorney said his client “recognizes and agrees” that the Section 2210 Performance Standards would still apply to the development “to the extent applicable.”

Bedard responded by saying if Meena fails to submit a Special Use Permit application, it will be “unclear” how Meena would meet the Performance Standards, and how the town would evaluate and enforce them.

Additional Wetlands Permit
Bedard raised an additional issue by stating he believes Meena also needs to apply to the Planning Board for a Special Use Permit under the Wetlands Article of the Zoning Ordinance. The Planning Board may grant such a permit for “a use not otherwise permitted under the Wetlands Article.”

One of the activities that requires such a permit is any activity that alters “the natural drainage system resulting in a change in the flow of water, water level or water table” (Article 16, Section 1607). Bedard said Meena is proposing to do that by building a shallow, paved swale in its driveway which would alter the flow of water away from Leavitt Road and direct it to a nearby state infiltration basin.

Missing from the discussion is an opinion by Effingham Town Counsel Matthew Serge. At the May 5 Planning Board hearing, Vice Chair George Bull said Serge discussed the issue with Planning Board Chair Theresa Swanick, who was absent that night.

“I can’t speak for the chair, and she was literally in consultation with the town counsel and I was not privy to that, other than he does not necessarily agree with Northpoint, but to what degree and why, I don’t know,” Bull said.

No process or timeline for publicly addressing the Special Use Permit issue was announced at the May 5 meeting. The hearing was continued to July 7 in order to give the applicant time to address other insufficiencies detailed in Northpoint’s evaluation.

Meanwhile, a decision on an appeal of the underlying ZBA decision to grant a variance last year remains pending in State Superior Court.