Freedom—January 29, 2023—In a Friday afternoon ruling, a Superior Court judge dismissed an appeal of the Effingham Planning Board’s decision to not require a Special Use Permit application from Conway gas station developer Meena LLC.

The Planning Board argued to the court that the development and operation of a gas station is a “prohibited use” within the Groundwater Protection District, and not a “special use” requiring a Special Use Permit.

Abutters and conservation groups argued that Meena had a variance to build and operate a gas station where gas stations are prohibited, which made it a “permitted” use subject to the performance standards of the Special Use Permit process.

The judge sided with the Planning Board, saying “prohibited use” and “special use” are mutually exclusive terms under the ordinance despite the existence of the variance.

“While the ZBA’s granting of a variance authorized the applicant to utilize his property as a Prohibited Use, it did not change the character of that use under the EZO,” she wrote.

“Accordingly, as the applicant’s use is a Prohibited Use, it is not a Special Use and cannot be subject to the Special Use Permit procedures.”

A separate appeal of the Planning Board’s decision was made to the ZBA, which heard arguments on January 4. One board member said he was ready to vote to require the permit, but another asked for more time to decide, and the discussion was continued to February 1.

The months-long debate over the issue has sparked ridicule over what some see as legal hair-splitting. But it has also created awareness that environmental safeguards in the zoning ordinance were omitted by the ZBA when it granted a variance for Meena to pump gas on its property, where gas stations are prohibited.

Among those safeguards are having plans to maintain a minimum four-feet of vertical separation between groundwater and stormwater, and remediating potentially carcinogenic naphthalene at the site. Neither is part of the stormwater management and spill protection plans the applicant has submitted.

In a letter to the Planning Board last April, Meena’s attorney said that while his client should not have to apply for a Special Use Permit, the company “recognizes and agrees” that the performance standards in Section 2210 “would still apply to the project.” The two currently missing plans are requirements of Section 2210.

In a Conway Daily Sun editorial last week, Ossipee Lake Alliance wrote that the lack of the two plans deprives the Planning Board and the community of important information, and inequitably lowers the environmental bar for the applicant.

Officials of several neighboring towns appear to agree. In advance of this week’s scheduled ZBA deliberation on the Special Use Permit issue, three towns with Development of Regional Impact status in the Meena matter sent letters to the board expressing renewed concerns about the potential threat to the aquifer.

A letter from Tamworth’s Planning Board said “Setting a precedent that the greatest risks do not deserve the greatest protections weakens the standards for protecting this vital resource,” adding that storing regulated substances in large quantities is “a regional concern that must be held to the highest standards.”

Eaton’s Select Board, Planning Board and Conservation Commission sent a joint letter strongly urging the ZBA to require a Special Use Permit, while Porter officials said they were concerned that the Planning Board “disregarded” the recommendation of the independent consultant it hired to advise it on the Meena application.

Municipal officials were not alone in writing to the ZBA. Long-time Ossipee resident Leona Simon said she knows from experience the nightmare of having a polluted well. She said she escaped that situation by moving near the former Boyle’s Market site, only to have neighboring Effingham approve a gas station on Ossipee’s border.

“It is easy to understand why Meena doesn’t want to apply for a Special Use Permit, but it is impossible to understand why the Planning Board is helping them avoid the requirement,” she wrote.

Tamworth resident Karen McCall pointed out that Meena’s use of more 30,000 gallons of gasoline far exceeds the zoning ordinance’s 100-gallon threshold for the permit requirement, while Ossipee resident Rich Fahy criticized the way the Planning Board approached its Special Use Permit vote in August.

“With 50+ people in the room and 50+ people on Zoom, not one lawyer was asked to opine, and the meeting was not opened for public comment to seek clarification or better understanding on what they were voting on,” Fahy wrote, adding that the Special Use Permit issue discussion lasted just ten minutes.

Friday’s Superior Court order does not take effect for 30 days, which means the court’s September stay on the Planning Board’s review of Meena’s Site Plan Application will remain in place for the time being.

In the meantime, the ZBA will meet this Wednesday, February 1, at 6:30 p.m. to continue the Special Use Permit deliberation it began on January 4.