Effingham—August 15, 2023—Ossipee residents Tammy McPherson and William Bartoswicz have appealed the Effingham Planning Board’s conditional approval of a gas station at the former Boyle’s Market, which abuts their homes. Ossipee Lake Alliance joined the appeal, which was filed on August 10 in State Superior Court.
The appeal states that the board’s approval is contrary to the town’s Site Plan Review Regulations, which require the board to protect the public’s health, safety and welfare, and avoid development which may result in negative environmental impacts.
“The [board’s] decision takes a safe, environmentally stable site with existing viable commercial and residential uses and adds a use which is dangerous and threatening to the aquifer and the abutters,” the Petition of Certiorari states.
The appeal notes that the Planning Board’s Finding of Facts, the basis of its July 11 decision, does not mention that the site is adjacent to numerous wells, or that it is a former gravel pit with highly transmissive soils directly above the Ossipee Aquifer.
“The Planning Board appears to have erroneously believed that because Meena received a variance for a gas station…that approving the site plan application was inevitable, regardless of environmental concerns.”
Despite being presented with “ample evidence” of the potential for contaminants from leaks and spills to infiltrate the aquifer and the public water supply well on the property, the board did not require an Environmental Impact Study, the appeal states.
The document cites the abutters’ technical consultant, Dr. Robert Newton of Geoscience Solutions LLC, who provided the Planning Board with information showing the plan’s stormwater management system is inadequate.
Additionally, per Newton, better “subcatchment delineation” is needed, and the design of the oil-water separation system will likely fail in extreme weather events.
“The stormwater management system as designed cannot handle the runoff from the property, as it is based on an incorrect interpretation of the watershed areas,” the petition states.
The result, per the document, will be that overflow from the bioretention basin, a key part of the stormwater management system, will run directly onto property owned by the N.H. Department of Transportation (NH DOT) and into a small wetland that drains into Philips Brook which flows to Ossipee Lake.
Section 6.4[I] of the Site Plan Review regulations prohibits increasing the peak flow of surface runoff if it passes beyond property lines unless it is within an approved public storm drainage system. The appeal notes that NH DOT informed the applicant last year that state property cannot be used as an integral part of the developer’s stormwater management plan.
Variance and Discretionary Decision Making
The Planning Board “disregarded” the need for a variance under the town’s zoning regulations in regard to front setback requirements for the proposed diesel gas pumping operation and the oil-water separator equipment to treat stormwater runoff, per the appeal.
The appeal also states that the Planning Board improperly delegated to its chairman and consulting engineer “discretionary decision making” in determining whether the applicant has met the “conditions precedent” set by the board, which are the requirements that must be met before final approval is granted.
The appeal states that such authority violates RSA 676:4,I (i). Moreover, the applicant’s responses to the board in regard to the conditions precedent require a hearing and notice in accordance with RSA 676:4,I (d).
“Matters such as how far to move the Basin Spillway so as not to impact steep slopes, the number and location of spot elevations and directional flow which in part allows you to check the accuracy and adequacy of drainage flows are not minor administrative items, especially when the petitioners have an expert who has disputed the validity of the applicant’s calculations.”
The petition concludes that “The Town of Effingham Planning Board acted illegally and/or unreasonably for the foregoing reasons,” and asks the court to grant relief it deems “just and proper.”
A chronology of the Meena LLC case and all documents are at https://bit.ly/meenagas.