Effingham—May 1, 2023—A spokesperson for Effingham’s Planning Board said the group will push this week’s scheduled hearing on the Meena gas station application to a future date when it convenes on Thursday at 6:30 p.m. at the Town Office.
But that’s not to say that Thursday’s proceeding will be without questions, discussion and decisions under George Bull, who became chairman two weeks ago.
At the top of the list of the board’s issues is addressing town zoning officer Rebecca Boyden’s ruling that the former convenience store at the Meena site lost its protected status as a grandfathered non-conforming use after being closed for more than two years.
Section 703 of the zoning ordinance states that a non-conforming use that has been discontinued for more than two years is presumed to be abandoned. The zoning officer is charged with making the determination.
Public emails show Boyden told the company two years ago that the store could remain open for business while it applied for gas station approval. The company instead kept it closed.
While the ordinance allows retail operations at the Meena site, the loss of grandfathered status means the company will have to apply to meet current ordinance standards, including those for building size, signs and parking. Boyden instructed the company by letter to include a plan for the store as part of the gas station site plan approval process.
At the Planning Board’s April 20 work session, Board Chair Bull took issue with Boyden’s position and asked the Select Board to “intervene to retract the letter,” according to draft meeting minutes. He stressed that it was “a time sensitive matter.”
Bull said the gas station Site Plan Application is an “active application” that “includes re-opening the convenience store.” Because the application is in process, he said, “technically the clock stops on everything related to that application.”
“There has been no abandonment,” Bull concluded.
But Bull’s opinion appears to be contrary to a ruling by Effingham Town Counsel Matthew Serge in the ZBA’s August 2021 approval of Meena’s application for relief from the prohibition against gas stations in the Groundwater Protection District.
Serge was asked by the board whether pumping gas, which was discontinued in 2015, might be grandfathered because the store continued to operate at the site. In an email to then-chair Theresa Swanick, Serge said a gas station and a convenience store are legally two different things even if they are on the same lot.
“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 abandonment principal of Section 703, however, applies to both uses, “whatever the reason for the discontinued use,” Serge said.
New Materials Questioned
Board Chair Bull is also likely to be questioned about application materials that Meena agent Horizons Engineering has continued to submit despite the Planning Board’s directive to submit a “final application” by September 9, 2022.
Then-Vice Chair Bull and Chair Swanick established the cut-off date in frustration with Meena’s repeated delays and application revisions, which caused several public hearings to be canceled. Since September 9, however, Meena has submitted more than 200 pages of new material, with recent document drops on February 21 and April 14.
A review of Planning Board meeting minutes shows the board has never voted to rescind or extend the deadline, and has never voted whether to reject the new materials or accept them and ask for a review by its independent third-party advisor, North Point Engineering.
The Planning Board’s April 20 work session draft minutes, however, state that the board is “now waiting for review by North Point” of the new materials.
In response to a request for clarification, a Planning Board spokesperson said it is believed that Meena’s new materials were submitted directly to North Point by Meena’s attorney.
That would appear to violate the board’s mandate that the company not directly submit materials to its independent third-party advisor, a decision made after the chair and vice-chair expressed concerns about the number of people representing the applicant, and the company’s lack of a point person for communications.
“The chair made it clear that no submission should go to the third-party reviewer directly,” the August 22, 2022 meeting minutes state.
“George Bull emphasized it is standard practice for all communications to go through the chair,” the minutes continue.