Effingham—November 26, 2023—Two issues will be on the table when Effingham’s ZBA meets on Wednesday, December 6, to take up an appeal of the Planning Board’s approval of a gas station at the former Boyle’s Market convenience store.
Ossipee residents Tammy McPherson and Bill Bartoswicz say the Planning Board’s approval of new structures on the property violates the zoning ordinance’s 50 ft. property line setback requirement.
The setback issue likely stems from repeated changes that developer Meena LLC made to the site plan during the past year as it addressed problems identified by Planning Board consultant North Point Engineering.
The second issue, which is the alleged loss of the convenience store’s grandfathered status, has an older origin. It stems from decisions the company made in the weeks after it purchased the property in February 2021.
Emails obtained from a right-to-know request show that when Zoning Officer Rebecca Boyden informed the company it needed to apply to the ZBA for approval to operate a gas station, she recommended bringing the store into current zoning compliance, a standard goal for non-conforming uses that predate zoning.
Pre-existing non-conforming uses are protected—grandfathered is the common term—as long as the use has been continuous with no changes made. Such was the case with the Boyle’s Market store, as Boyden confirmed with the previous owner.
Meena instead closed the store to the public, fenced it off and began installing underground gasoline storage tanks without a permit or an approved site plan. After work was stopped by a cease-and-desist order, the company asked for permission to reopen the store while it applied to the ZBA for a gas station variance.
In an email, Zoning Officer Boyden agreed to the request as long as the developer promised to make no changes or improvements to the store. But Meena kept the store closed.
There the issue remained until April 20 this year, when Boyden informed the developer that the store had lost its grandfathered status for being closed for more than two years, making it an “abandoned use” per Section 703 of the ordinance.
That determination meant the company needed to bring the store into compliance with current zoning regulations—as the town had recommended two years prior.
Meena attorney Matthew Johnson disputed the store’s closure date, and after a series of letters, it was fixed as May 13, 2021.
“Since you say ‘the store operated up to the cease-and-desist order…and the two years will not be up until May 13, 2023 at the earliest,’ it seems we are in agreement that the store has been closed since May 13, 2021,” Boyden wrote to Johnson on May 15 this year.
In their appeal to the ZBA, Ossipee abutters McPherson and Bartoswicz said the Planning Board “overlooked” the store’s abandoned status when it approved the site plan in July.
They pointed to Article 8 of Effingham’s Site Plan Review Regulations, which states that site plans must comply “in all respects” with the town’s ordinances and regulations in order to be approved.
This is not the first appearance of the zoning term “abandoned use” in the Meena proceedings.
During the variance deliberations in 2021, several ZBA members asked Town Counsel Matthew Serge for guidance on interpreting “grandfathering” as it pertained to the site’s previous gas station, which was closed and dismantled in 2015.
Serge responded to say that “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.”
An October 25 hearing on the current ZBA appeal was continued after the board determined it needed to notify nine additional towns and the Lakes Region Planning Commission because the development’s location over the Ossipee Aquifer makes it a Development of Regional Impact.
The appeal is now scheduled to be heard on Wednesday December 6, at 7 p.m. in the Effingham Elementary School.
The webpage https://bit.ly/meenagas has a chronology of the gas station case and access to all case documents.