Effingham—November 12, 2023—A 100-paragraph “Finding of Facts” document compiled by Effingham’s Planning Board was the basis of its July 11 decision to approve a gas station at the former Boyle’s Market convenience store.
Now the accuracy of that document, summarizing more than two years of public information, is being challenged by a group of conservationists and former municipal officials who spent weeks analyzing the materials after a key item was found to be undocumented.
Item 12 of the Findings of Fact stated that the Select Board authorized the developer to install underground gasoline storage tanks and equipment in the spring of 2021, an action not previously known to the public and not found in meeting minutes.
The claim caused a furor among opponents of the development because such an act would have been outside the zoning ordinance approval process since the developer did not have a permit, a variance, or an approved site plan.
Several weeks after the findings document was released, current Planning Board alternate member Michael Cahalane, who was Select Board Chair in 2021, confirmed that he authorized the installation and was the source of the revelation.
Concluding that other Findings of Fact might merit scrutiny, opponents of the gas station began compiling a list of what they say are errors, omissions and misleading statements in the document.
Chief among the document’s omissions is the board’s failure to acknowledge the core fact of the case that the site is a former gravel pit with highly transmissive soils, is adjacent to numerous wells, is directly above the Ossipee Aquifer, and is in a zone where gas stations are prohibited as a threat to drinking water.
So central is this core fact to the Meena case that the company’s application was ruled to be a Development of Regional Impact (DRI) affecting ten towns. The DRI ruling is also missing from the Findings of Fact document.
The DRI designation led municipal officials from several neighboring towns to publicly oppose the development as an environmental threat, and a precedent that could weaken other groundwater ordinances.
Their opposition is not recorded in the findings document. Neither is there mention of a petition signed by 676 people, more than 100 letters of opposition from property owners and non-profit organizations, and a highly-publicized YouTube video and several written environmental analyses by geoscientist Dr. Robert Newton.
Other facts that were central to the more than two years of deliberations by the ZBA and Planning Board are misleading or wrong, say the critics.
Item 11, for example, states that gasoline sales at the site were “suspended” in 2015, whereas, in fact, the previous owner permanently ended gas sales and used state funds to remove the tanks and equipment.
The use of the word “suspended” in the document is notable because the question of whether pumping gas at the site was suspended and “grandfathered,” or was stopped permanently and became an “abandoned use,” was debated and resolved by the ZBA during hearings in the summer of 2021.
After several board members raised the grandfathering issue, Effingham’s Town Counsel advised that the gas station closure met the definition of an “abandoned use” because “regardless of the reason for the operation ceasing,” it had been closed for more than two years.
In addition to the Cahalane revelation, Item 12 of the document contains what critics say is a misleading sequence of events. It reads:
“After removal of the prior underground storage tanks, etc. and discussion with Town personnel, Meena LLC began reinstalling the underground storage tanks, etc. in the spring of 2021 with the Town’s Board of Selectmen’s knowledge.”
Critics say Item 12 erroneously implies a seamless process, whereas in reality there was an six-year gap between the previous owner’s permanent removal of the tanks and later discussions between the town and a different owner. Moreover, nothing was “reinstalled” because the installation was brand new.
The difference is important, they say, because one of the disputed issues in the case is the location of the underground gasoline storage tanks in proximity to the site’s public water supply well.
The tanks were installed using the state’s more permissive setback requirements for “replacement” tanks rather than the requirements for “new” tanks, even though the tanks didn’t replace anything. The previous gas tanks were removed in 2015 and have been listed as “permanently closed” in DES’s database ever since.
Item 78 of the Findings of Fact also deals with the tank setback issue by stating “The Board found that the Applicant supplied the proper DES documentation regarding a waiver for the [setback] distance from the well and its approved [public] water supply.”
A request to the Planning Board in July this year for a copy of the DES waiver did not produce a response until last month, at which time a board official said the developer actually had not submitted a DES waiver document.
“Whatever ‘waiver’ was involved was internal to DES and not part of the Planning Board decision,” the board official wrote, although the claim of a submitted DES waiver continues to be a Finding of Fact in the board’s summary document.
Further, the Finding of Facts document is silent about an August 2022 letter from DOT Commissioner Victoria Sheehan in regard to Meena’s plan to funnel gas station runoff onto abutting state land, where it would empty into wetlands and flow to Ossipee Lake.
Critics say DOT’s position that its property “will not become an integral part of the development’s stormwater management plan” is relevant because the Planning Board in July approved a design for a bioretention basin that is practically on top of the state lot line, and whose outflow will be directed onto the DOT land.
Decision Has Been Appealed
Some of the issues identified by the group are contained in an appeal of the Planning Board’s decision that was filed in Superior Court on August 10 this year by Ossipee residents Tammy McPherson and Bill Bartoswicz, whose homes abut the site.
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 appeal states.
The Superior Court appeal is on hold because the Planning Board has not yet ruled that Meena LLC has met the conditions the board established in its conditional approval of the site plan this past summer.
Meanwhile, a separate appeal by the abutters alleges that the Planning Board’s approval violated the town’s zoning ordinance. That appeal will be heard by the ZBA on December 6.
The webpage https://bit.ly/meenagas has a chronology of the gas station case and access to all case documents.