Effingham—December 3, 2023—At a sparsely attended meeting on Thursday night, Effingham’s Planning Board voted that Conway developer Meena LLC had met the seven conditions the board established in July and may proceed with the development of a gas station at the former Boyle’s Market.
Since nothing was signed, however, the effective date of the approval is uncertain, and an appeal of the underlying July decision, scheduled to be heard by the ZBA this week, could complicate matters. Meena was not represented at Thursday’s meeting to comment on its next steps.
As has so often been the case with the Planning Board’s gas station meetings, the latest meeting was not without controversy, as members of the audience criticized the process leading up to the meeting, and pointed to issues they said the board has not resolved.
The plan to hold a meeting on November 30 took shape at a board work session on November 16, when Board Chair George Bull said he believed Meena had met the seven conditions, which included revising the location of the diesel pumps, adding new spot elevations and the like.
Bull recommended holding a “special meeting” on November 30 “to sign the paperwork,” according Ossipee resident Rich Fahy, an advocate for Meena abutting property owner Bill Bartoswicz, and the only member of the public in attendance that night.
The board agreed to do so, but the town posted the meeting on its website without stating that the gas station would be on the agenda or that the board would be reviewing the final materials and voting. Moreover, the materials the board planned to vote on had not been made available to the public.
Ossipee Lake Alliance said its repeated requests for the documents since mid-October were unanswered until the day before the meeting, at which time Board Chair Bull wrote to say “If you would like to see what the Board is reviewing, I suggest you attend the meeting.”
In addition to not having the materials, those planning to attend Thursday’s session were left scrambling after the board switched the meeting time from 6:30 p.m. to 6 p.m. at some point during the day of the meeting.
Five members of the public, along with board members Gary Jewell and Bridget Perry, arrived in advance of the original 6:30 start time to find the meeting was already in progress.
After approximately 45 minutes of discussion, the Planning Board voted that the seven conditions had been met. But members of the public said there was more to discuss.
Spill Prevention Plan at Issue
The board was asked about the most recent Spill Prevention Control and Countermeasure Plan (SPCC), one of two key documents the ZBA required when it granted a variance for the gas station in 2021.
Board Chair Bull said he had just received the plan “yesterday,” meaning neither the board nor the public had read it. It was also unclear whether the board’s technical advisor, North Point Engineering, had reviewed the document in light of the changes made to the site plan in August.
The gist of the SPCC plan, which is required by the zoning ordinance, is that the Fire Chief “shall determine whether the plan will prevent, contain, and minimize releases from ordinary or catastrophic events such as spills, floods or fires that may cause large releases of regulated substances.”
Ossipee resident Fahy said he became concerned after learning at the November 16 work session that the board did not plan to require the Fire Chief’s approval, something board advisor North Point had repeatedly said was a required step. Fahy submitted a letter to the board asking it to reconsider, saying it was essential for the Fire Chief to reassure the public.
Fahy’s letter cited emails obtained through a Freedom of Information Act in which the Fire Chief appeared to be uncertain about what to do with the SPCC document, which was prepared by Meena agent Horizons Engineering to meet the zoning requirement.
The Fire Chief told Horizons by email that he would review the document “in coordination with DES.” But a subsequent email to the Chief from DES said the state had “no jurisdiction” in the matter.
Stormwater Modeling in Error
A letter submitted to the board two days before the meeting claimed that the revised technical information the applicant was required to submit as a condition of the approval confirmed that the stormwater modeling in the plan is flawed.
The letter was sent by geoscientist Dr. Robert Newton, the only person outside of the Planning Board known to have received Meena’s revised technical documents.
Newton’s company, Geoscience Solutions LLC, is advising Ossipee residents Tammy McPherson and Bill Bartoswicz, who appealed the board’s conditional approval of the development and obtained the materials through their attorney.
Newton wrote to the board in June to say he believed Meena’s stormwater modeling was incorrect. He recommended that the board require additional “spot elevations and flow direction arrows” as Horizon’s hydrologic model did not conform with Light Detection and Ranging (LiDAR) elevation data published by the state.
The board agreed to the recommendation and made it a condition of its July 11 approval of the site plan. Meena provided the additional material, and at last week’s meeting the board voted that the condition had been satisfied by the submission. But the board did not discuss what the new data meant.
What it means, Newton said in his two-page letter, is that “The error in the plan is significant.”
In essence, he wrote, the lack of detailed elevation data had created inaccurate “subcatchment delineations,” which are the key measurements determining whether the stormwater system can handle the highest expected stormwater flows.
As an example, he said the modeled area of one of the subcatchment basins was 6,781 sq. ft. when it should have been 10,346 sq. ft. That’s an error of over 50% percent, he said, meaning the model estimates approved by the board in July are approximately 50% too low.
“The stormwater system must be designed to handle the highest expected flows,” Newton wrote. “The underestimation of [stormwater] flow in the model means the stormwater system may not be designed to handle the actual flows.”
Newton told the board it would be unfortunate if the knowledge gained from data collected as part of the precondition process was ignored, and the system were to undergo a failure at some future date that led to the contamination of the aquifer.
Newton’s letter was neither acknowledged nor discussed at the meeting.
Appeals Likely to Continue
Abutting property owners McPherson and Bartoswicz appealed the Planning Board’s conditional approval of the gas station to Superior Court on August 10, but withdrew the action when it was clear it would take substantial time for the board to rule on the whether the conditions could be met.
The court approved the withdrawal “without prejudice,” meaning an appeal can be filed again.
The appellants filed a separate appeal to the ZBA on September 13. The appeal claimed the Planning Board’s approval violated the zoning ordinance’s setback requirements as well as Article 8 of the town’s Site Plan Review Regulations, which requires site plans to comply “in all respects” with town ordinances and regulations in order to be approved.
An October hearing on the ZBA appeal was continued to December 6 after the board ruled the matter had regional impact and required the notification of Lakes Region Planning Commission and nine communities in addition to Effingham.
The town has not responded to requests for a copy of the notification letter and copies of the recipient receipts. As of Friday, December 1, half of the ten affected towns reported they had not received a notification.
The webpage https://bit.ly/meenagas has a chronology of the gas station case and access to all case documents.