Effingham—January 18, 2024—A letter from Town Counsel Matthew Serge to Effingham’s Select Board and Planning Board is being sought after it was brought to light by a Select Board member at the January 3 ZBA hearing on an appeal in the Meena LLC gas station case.
Ossipee Lake Alliance requested the release of the document and related correspondence after Effingham Select Board member Chris Seamans asked why no one at the hearing was acknowledging that Attorney Serge “changed his mind” about abandonment as it pertains to the Meena property. Seamans did not provide the ZBA with evidence of his claim.
Article 703 of the zoning ordinance states that a pre-existing non-conforming use is presumed to be abandoned if the use has been inactive for more than two years.
The question of whether Meena’s convenience store is an abandoned use under zoning is one of three issues in an appeal by Meena’s abutting residential neighbors that was being heard by the ZBA at the January 3 hearing.
Seamans’s characterization of Town Counsel’s opinion about the abandonment issue took place during the public comment portion of the hearing. After considering arguments from opposing attorneys and listening to public comments, the ZBA voted 3-2 to deny the appeal.
Town Counsel Serge’s only previous public statement on abandonment in the Meena case concerned the site’s former use as a gas station, at which time he said abandonment was triggered after two years “regardless of the reason” for the discontinuance.
A Ruling Rescinded
The Serge letter that Seamans referenced at the hearing was apparently written in response to the Zoning Enforcement Officer’s April 2023 decision that the convenience store needed to be brought into current compliance because it had been closed for more than two years.
A few weeks later, the zoning officer withdrew her decision under pressure from Meena attorney Matthew Johnson and Planning Board Chair George Bull. A new letter of decision was issued, confirming that the store was closed for more than two years but omitting, without explanation, the requirement to bring it into compliance.
The abutters say the omission created an unresolved legal question that the Planning Board should have addressed before approving the site plan. The town’s Site Plan Review Regulations require site plans to comply “in all respects” with the zoning ordinance.
Meena attorney Johnson argued to the ZBA that his client was “prevented” from reopening the store due to the “actions and inactions” of town officials. He said the company incurred the cost of installing underground gas tanks, only to have the town “change course” and issue a cease-and-desist order.
“My client cannot abandon a use when it was prevented from exercising that use,” Johnson told the board.
The attorney for the abutters, Biron Bedard, told the ZBA that the cease-and-desist order only stopped the installation of gas tanks and was unrelated to the store. He said the town advised Meena in writing that it could reopen the store while the cease-and-desist order was in effect, but the company keep it closed.
During public comment at the hearing, Billie Lunt of Effingham spoke to say Meena “had only itself to blame” for the abandonment predicament because it made the decision to close the store to install the underground tanks and equipment without a permit or an approved site plan.
A Selectman’s Frustration
In apparent frustration with the abandonment discussion, Select Board member Chris Seamans stood up to complain that opponents of the development were ignoring a letter from Town Counsel Matthew Serge that said he had “changed his mind” about the abandonment issue.
“[Serge] ultimately put it in writing to the Board of Selectmen and to the Planning Board his ruling when he directed the Selectmen to remove the cease-and-desist order because it was not abandoned,” Seamans offered.
“You guys [opponents of the plan] have done all that work…and you haven’t found that?” he asked the audience about the letter before returning to his seat.
After Ossipee resident Richard Fahy rose to address Seamans’s comments, Seamans attempted to shout him down as “out of order” because Fahy had previously spoken.
After being allowed to speak, Fahy said he had asked the Select Board in September about the legal basis of its decision to lift the cease-and-desist order and was told the information was privileged.
Fahy said he didn’t understand why Seamans was complaining that people did not have information that the Select Board was withholding.
Ossipee Lake Alliance said its request for the Serge documents under N.H. RSA 91-A:4 was acknowledged on January 8, but the organization has not yet received the material.
The webpage https://bit.ly/meenagas has a chronology of the gas station case and access to all case documents.