Effingham—September 27, 2023—In an appeal to Effingham’s Zoning Board of Adjustment, abutters to the former Boyle’s Market on Route 25 said the Planning Board’s conditional approval of a gas station at the site violates the zoning ordinance.
The appeal states that the proposed gas pumps, diesel pump, diesel canopy, oil-water separator, bioretention basin and other stormwater management devices in the site plan violate Article 4, Section 402, of the ordinance, which requires a 50-foot minimum front setback for structures in the Rural Agricultural District, where the site is located.
The appeal, which was joined by Ossipee Lake Alliance, said all of the specified items meet the zoning ordinance’s definition of structures, which is “anything constructed or erected with a fixed location on the ground or attached to something having a fixed location on the ground.”
Article 8 of the town’s Site Plan Review Regulations states that site plans must comply “in all respects” with the town’s ordinances and regulations in order to be approved.
The Planning Board granted Conway developer Meena LLC conditional approval for its gas station site plan application on July 11. The board issued a slightly modified Notice of Decision on August 8.
The designs of the structures identified in the appeal have been repeatedly revised by the applicant to address omissions, operating flaws and limitations identified by North Point Engineering, the Planning Board’s independent technical advisor. However, according to the appellants, none of the changes have corrected the setback violations.
Design changes approved by the Planning Board would result in the bioretention basin and oil-water separator being located almost directly on top of the lot line between the developer’s property and land owned by the state, according to the appellants.
Additionally, the proposed stormwater “spillway” for the bioretention basin terminates directly at the edge of a designated 25-foot wetlands buffer. Runoff from the basin will funnel into the wetlands buffer, which is on both properties. The wetlands drain into Phillips Brook, one of two tributaries that empty into Leavitt Bay.
In addition to the setback issue, the ZBA appeal points to Article 7, Section 703, of the zoning ordinance, which states that non-conforming uses that have been discontinued for two or more years are considered to be abandoned.
A May 15 letter to the applicant’s attorney from the town’s zoning officer established that the store has been closed since May 13, 2021, putting it past the two-year mark.
A convenience store is a permitted use at the site, but the building size exceeds what is currently allowed. Having lost its grandfathered status, the ordinance requires that the store be brought into compliance with current standards in order to reopen, according to the appellants.
A Return to the ZBA
The new appeal puts the development back before the board where the gas station proposal began in March 2021 when the company applied for a special exception permit to pump gas at the convenience store, which it had bought the month before.
Despite spending months prior to the purchase seeking the state’s approval of its design for an underground gas storage tank system, the developer neglected to address local regulations until after buying the business.
The omission proved to be serious because local regulations take legal precedence over state permits, and gas stations are not a permitted use at the site. The site’s location above the Ossipee Aquifer also made it a Development of Regional Impact affecting ten communities. Officials from a number of those towns have been vocal in opposing the plan as an environmental threat.
A chronology of the Meena LLC case and all documents are at https://bit.ly/meenagas.