The Curious Case of Item 12

Editorial 

In “Rashomon,” the classic Akira Kurosawa film, the core facts of the story are never in dispute. But as told through the subjective and contradictory recollections of the film’s characters, the truth becomes elusive, murky and, finally, unknowable.

The “Rashomon Effect,” now familiar even to those who have never seen the film, was brought to mind by the Effingham Planning Board’s “Findings of Fact” document in the Meena LLC gas station case, most especially Item 12.

The Planning Board’s Item 12 revealed, and appeared to confirm, the previously unknown claim that the Select Board supposedly authorized the developer to start building a gas station in the spring of 2021. At the time, the developer did not have a permit or an approved site plan.

Item 12 was news because the alleged authorization by the Select Board would have violated the town’s zoning processes. For those closely following the case, however, it was also news because it conflicted with previous accounts of the construction project.

As with the movie “Rashomon,” the basic facts are not in dispute. The company received a ZBA special exception for a gas station on March 30, 2021, and was instructed to submit a site plan application to the Planning Board for review.

But the developer was in a hurry. In a series of emails obtained through a public information request, property owner Pankaj Garg and his agents, Mark McConkey and Jim Doucette, asked the ZBA Chair and Zoning Officer if they could start digging before site plan review, saying they were in a “tight time situation” of their own making (“our fault completely,” wrote the developer to the town).

When that didn’t produce results, Meena agent Doucette sent an email to the town on April 13 saying construction would start anyhow, calling it a “difficult decision.” A month later, on May 13, the work was halted by a cease-and-desist order authorized by the Select Board, after which the developer applied to the ZBA for a gas station variance.

The Rashomon Effect began with the first ZBA variance hearing, on June 29, when Meena agent McConkey said the company started work on its own initiative, without an approved site plan, to take advantage of a “window of opportunity” in the contractor’s availability, an explanation consistent with the company’s April emails to town officials.

At the July 8 meeting, however, the minutes show McConkey changed the story. He said that the company believed it already had all of the necessary permits before starting work. That got the attention of the Zoning Officer, who said people usually come to her before starting a project to understand what is required, but no one did so for this development.

The company dug in at the third hearing, on July 20, with McConkey saying the developer was “under the impression” that only state permits, not permits issued by town authorities, were needed to “reinstall” gas pumps at the site. He read aloud from an “affidavit” in which Meena agent Doucette said he and contractor Mark Winslow asked the Zoning Officer if there was a town environmental overlay district at the Meena property and were told there was not.

The Zoning Officer and ZBA Chair again pushed back, saying it is “not on the town” to advise a property owner about the zoning implications of a purchase, and no formal application for information had ever been put forward.

The debate expired without resolution, only to resurface this year via Item 12 of the Planning Board’s Findings of Fact, which claimed the Select Board had approved the 2021 construction. That got the attention of the current Select Board, which informed the Planning Board that there was nothing in the prior Select Board’s minutes to support such a claim.

The Planning Board convened a special hearing on the issue this August. It was about to expunge the claim when Planning Board alternate Mike Cahalane, who chaired the 2021 Select Board, suddenly revealed he was the source of the information and, according to his recollections, the 2021 Select Board had issued the approval.

Meena’s attorney applauded Cahalane’s ‘admission,’ saying it helped explain his client’s actions. He asked that Item 12 remain in the document as written, but members of the Planning Board disagreed. Since there wasn’t a Select Board document or meeting minutes memorializing the supposed decision, the Planning Board reasoned it was not a finding of fact, just an assertion about something that may or may not have happened in the past.

Planning Board member Elaine Chick offered a fix: Change Findings of Fact Item 12 to read that the Select Board was “aware” of the construction work rather than had “authorized” it. On a 5-2 vote, the board voted to make that change despite there being no evidence in town records that the then-Select Board was “aware” of the construction any more than it had “authorized” it.

With so many different interpretations of the same event on the public record, we thought Effingham’s current Select Board might have something to say about it, and they did, at their October 30th meeting.

“It’s hearsay,” said Select Board chair Lenny Espie about former Select Board chair Cahalane’s claim of responsibility. “There are no minutes to back up what Mike said.”

The film “Rashomon” ends in ambiguity, with director Kurosawa implying that where individual perception and recollection are concerned, the ultimate truth is often covered by the fog of time over subjective memories and perceptions. Stated another way, there is no single truth, only different versions of it.

The curious case of the Effingham Planning Board’s ‘Item 12’ mystery appears destined to end on that same note.

3 Comments

  1. Patricia Riker 3 months ago December 15, 2023

    WHEN are people going to admit this whole issue was done ILLEGALLY, BY OUR FORMER SELECTMEN, going against a Town Ordinance from 2012 by the PEOPLE OF EFFINGHAM and has put citizens who live near it in jeopardy for their well being? I am appalled by all this disgusting behavior of elected officials and Meena LLC perpetrators. All about GREED AND ARROGANCE.

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  2. Richard N. 3 months ago December 15, 2023

    Can what was done be undone? It is clear that at each stage of this event the “fog of development” engulfed those individuals responsible for following public policy. Aw shucks! Life’s travails are supposed to viewed from the rear view mirror (actually being replace by cameras these days.). That fog still prevails in the minds of those individuals. Yet the problem we face is present now and in the future. Preservation of our water supply from an increased probability of contamination shouldn’t depend upon foggy memory. YES is the answer to the action of those individuals who exceeded their authority, expended time and money because it was opportunistic, or blithely overlooked legal mandates.

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  3. Steve 3 months ago December 19, 2023

    No one cares about this anymore. It’s sat for 3 years. The town would rather let the property sit and fall to ruin, than collect taxes on the sales and income generated from it.

    It has absolutely nothing to do with a gas station “on a shallow aquifer”. There is another gas station on the other side of the road. There is a fuel dock on the river. That argument has been proven to be driven by a “non-profit” who is benefitting from the closure and inability to open the business.

    Let it open or let it rot. No one cares anymore apart from the new owner and the people who are profiting from their inability to reopen.

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