Effingham—January 11, 2023—While a court-ordered stay continues to stall consideration of Meena LLC’s gas station Site Plan Application, a related issue took center stage last week.
On Wednesday, Effingham’s Zoning Board of Adjustment heard an appeal of the Planning Board’s ruling that the Conway real estate developer does not need to apply for a Special Use Permit to operate a gas station.
The ruling put the Planning Board at odds with North Point Engineering, the company it hired to advise it on the application, and resulted in an appeal to the ZBA and Superior Court by Meena neighbors Bill Bartoswicz and Tammy McPherson, joined by Ossipee Lake Alliance and Green Mountain Conservation Group.
At issue is Section 2208 of the Groundwater Protection Ordinance, which authorizes the Planning Board to issue Special Use Permits for the “storage, handling, and use of regulated substances in quantities exceeding 100 gallons.” Meena’s storage would be in the range of 30,000 gallons.
North Point twice advised the Planning Board that Meena should apply for the permit, while Meena’s attorney argued against it, saying such permits only apply to situations where the use is permitted, not when the use is prohibited.
In August, the Planning Board voted unanimously that a Special Use Permit was not needed, reasoning that the ZBA had considered environmental issues before issuing the variance, and the Section 2208 requirements were redundant to what was already required.
Last week, the attorney for the appellants, Biron Bedard, told the ZBA that when it granted the variance, a gas station at the site became a permitted use that requires a Special Use Permit.
He said that in order to meet Section 2208’s Performance Standards, Meena must provide “certain critical information” that is essential for the town to have, but which is not required by the Site Plan Application.
That information includes the company’s plan to maintain more than four feet of “vertical separation” between its stormwater management practices and the groundwater, and how it will address the site’s residual naphthalene contaminants from a gas station that was abandoned at the site eight years ago.
Bedard said that in addition to depriving itself of important information needed to ensure environmental protections for the public, the Planning Board did not follow the required procedure for granting a waiver, and did not issue a written ruling explaining its reasons for doing so.
“It doesn’t make sense that a prohibited use is still a prohibited use after they got a variance making it lawful,” Bedard summed up, later characterizing Meena’s resistance to the requirement as “a shortcut of epic proportions.”
In response, Planning Board attorney Christopher Boldt took a literal view of matter, saying the wording of the ordinance is clear that the Special Use Permit process is for permitted uses, not prohibited uses.
Boldt said the ZBA analyzed the environmental issues “hot and heavy” before granting a variance, and reminded the board that the variance was upheld in Superior Court on appeal.
He said he agreed with Bedard that the ordinance contains a required process for granting waivers of Special Use Permit requirements, but he asked the ZBA “Where is the harm?”, later suggesting that the Stormwater Management and Spill Prevention plans offer sufficient protections.
“I am a betting man by profession, and I like to look and see what is the likely outcome if something goes to court, and where do I want my client to be,” Boldt said.
Reminding the ZBA that the issue before them is also before a Superior Court judge, Boldt said “I think the court will find a Special Use Permit in this instance is not the proper course.”
During a period of public comment, residents from Effingham, Ossipee, Porter and Freedom spoke in favor of requiring a Special Use Permit.
“They’ve already proven that they don’t follow the rules,” said 16-year-old Meena neighbor Stella Lundt, a reference to the cease-and-desist order Effingham’s Zoning Officer issued after Meena began building the gas station without required permits.
“A Special Use Permit would at least allow the community to understand how the applicant intends to protect the aquifer,” she told the board.
Corey Lane, from Porter, contrasted Planning Board Attorney Boldt’s reference to being a gambler to the environmental due diligence that Meena abutter Bill Bartoswicz conducted before he bought a home next to what was then Boyle’s Convenience Store.
Lane said Bartoswicz, who is retired and has war-related health issues, had the property’s well water tested, and felt secure in the knowledge that the town’s Groundwater Protection Ordinance would prohibit a gas station from ever being built at the site, which proved not to be the case.
Effingham resident Blair Folts spoke for abutter Tammy McPherson, who was working and could not attend. McPherson said the variance approval is “water over the dam,” but the Special Use Permit would help make up for that by providing “one more level” of public safety because it is “more strict” than the plans for Stormwater Management and Spill Prevention.
“If the applicant wasn’t worried about what they were doing and where they were doing it, they would have no problem applying for a Special Use Permit,” she told the ZBA through Folts.
Ossipee resident Rich Fahy said that when the Planning Board deliberated the issue in August, it failed to publicly discuss the legal arguments submitted in writing by the two opposing attorneys, made no mention of having been advised by Town Counsel, and didn’t allow public comments.
“They just kind of talked among themselves about the issue and concluded the permit was redundant,” he said.
“You will see that in the minutes, but the problem is that it’s not redundant.”
ZBA Board Chair Jim Pittman began deliberations by reminding members that the question was whether the Planning Board was correct in deciding not to require a Special Use Permit for Meena’s gas station application.
Board member Alan Taylor responded to say he was prepared to vote to require the permit, saying “There’s a 30,000-gallon tank, and we have an aquifer that we have to protect.”
“I don’t even know how the variance was passed to begin with last year. I think the Planning Board made a mistake and the Special Use Permit should be required of the applicant.”
Board member Lawrence Edwards said he wanted more time to review the issue, and member Tim White said if any member needed more time, the vote should be delayed.
On a vote of 4-1, the board tabled discussion until Wednesday, February 1.