Effingham—April 25, 2023—The fallout from Meena LLC’s failure to consider local regulations before buying Boyle’s Market worsened last week after the convenience store lost its legal protection as a pre-existing non-conforming use because it has been closed for more than two years.
In a letter to the Conway developer and his agent, local contractor Mark McConkey, Effingham Zoning Enforcement Officer Rebecca Boyden said “For zoning purposes, I must now consider it as an empty building looking for a new use.”
Section 703 of the zoning ordinance states that “A non-conforming use shall be presumed abandoned if the use has been discontinued for a period of two years or more.”
Boyden directed Meena to include the store, and any proposed uses, in the company’s Site Plan Application for a gas station at the site. Her letter cites some of the requirements that must be met in regard to floor space, lighting and parking, and points to the need for a state food service license.
As has been previously reported, Meena spent months obtaining state permits to pump gas, but didn’t ask the town about local requirements until after it bought the property for $362,000 on February 24, 2021.
After being contacted by the buyer’s agents, the Zoning Officer advised that the site’s existing operations, including the store and two apartments, could continue as grandfathered, but any changes would require town approvals.
“I have recommended to [Meena agents] Jim Doucette and Mark McConkey that they get site plan approval for the entire property in order to make it conforming,” Boyden summarized in a March 3, 2021 email to ZBA Chair Theresa Swanick.
Instead, Meena focused solely on obtaining ZBA and Planning Board approvals to pump gas. As each of its Site Plan Applications fell short with the Planning Board’s independent engineering advisor, the store remained closed and the Section 703 clock ticked. When the clock passed the two-year mark, the store’s grandfathered status was voided.
Public documents show Zoning Officer Boyden advised the developer it could operate the store while it pursued approval for a gas station—even after the company defied town officials by illegally installing an underground gasoline tank system without permits or approvals.
“Following up on my previous email, you can reopen the store, but there should be no improvements to the site,” Zoning Officer Boyden wrote to Meena agent Jim Doucette the day after the town issued a cease-and-desist order to stop the company’s illegal construction work.
Not a New Issue
This is not the first time Section 703 of the ordinance has figured in Meena’s legal proceedings. It became part of the evaluation process of the developer’s application to the ZBA for a variance to override the prohibition against gas stations in the town’s Groundwater Protection District.
As the variance proceedings neared an end in August 2021, several board members requested Town Counsel’s advice on whether the Section 703 “abandonment” provision applied to a former gas station at the site.
Their theory was that the site’s use as a gas station might not have been abandoned because the convenience store continued to operate after owner David Boyle gave up pumping gas and removed the tanks and pumps in 2015 under state supervision.
In an email to ZBA Chair Swanick, Town Counsel Matthew Serge said that a gas station and a convenience store are two different things that are treated differently in the ordinance, but the “abandonment” principal of Section 703 is immutable.
“While I understand the concept of tying two uses that are often associated with one another together for the non-conforming use analysis, this would be counter to the fact that the uses are treated differently in the ordinance, and have different impacts,” he wrote.
“The automobile service station use ceased to operate more than 2 years prior and, regardless of the reason for the operation ceasing, that use was abandoned.”
In his email, Serge also reminded the board that “the policy” for zoning officials in regard to non-conforming uses should be “to eventually bring them into conformity.”