The following is courtesy of the Conway Daily Sun

Effingham—January 9, 2024—The Zoning Board of Adjustment last Wednesday rejected claims that the town planning board improperly approved plans for a proposed gas station at the former Boyle’s Market site.

The proposed gas station is controversial because environmentalists say the site, which is now owned by Meena LLC, is situated above the Ossipee Aquifer. An abutter, William Bartoswicz, has a well only 310 feet from the gas station’s underground fuel storage tanks.

Bartoswicz and Tammy McPherson, both of Ossipee, appealed the Effingham Planning Board’s July 11 conditional approval of Meena’s site plan application. The abutters claim the project would violate the town’s setback requirements and that since the convenience store has been closed so long that it lost its grandfathered status in terms of maximum size of a retail facility allowed.

About 20 people attended the ZBA meeting held Jan. 3. Voting to uphold the planning board decision were ZBA Chair Lawrence Edwards, Aaron Lavoie Jr. and Vicki Kirkwood. Opposed were Alan Taylor and Goran Romanovic.

The abutters’ attorney, Biron Bedard of Ransmeier & Spellman, argued that the diesel canopy, diesel pump, gas pumps and stormwater management infrastructure are located or would be located within 50 feet of a setback from Route 25. A special exception granted in 2021 expired after two years, and now the the setbacks have to be met, he said.

Bedard said the convenience store was built before zoning was adopted and doesn’t conform to current zoning. Thus, as use of the store was discontinued for two years, that use is considered abandoned.

He said that because the use expired, the building’s retail floor space must shrink from from 2,700 to 2,000 square feet in order to conform to zoning.

“We’re asking you to send it (the project) back to the planning board so that they address these items” said Bedard.

In an email last Thursday, he told Sun his next step would be to file for reconsideration at the ZBA.

If the ZBA doesn’t grant that, the case could go back to Superior Court. On Monday, he said his clients have 30 days to move forward. “They are currently evaluating their options,” said Bedard.

Planning board attorney Christopher Boldt of Donahue, Tucker & Ciandella, PLLC of Portsmouth said this project has bounced back and forth between the ZBA, the planning board and Superior Court for three years. He said the planning board determined that a 25-foot setback requirement was applicable.

He also said the argument about the store is a “red herring” because Meena was stalled by the appeals and can’t be penalized in regards to grandfathering because it was seeking approval the whole time.

“This board (ZBA) was very clear in what specific conditions the planning board was to deal with,” said Boldt, adding 26 meetings have been held on the Meena project. “I haven’t had a case in 35 years, that has had 26 meetings. This planning board did what it was supposed to do. To say that it didn’t, I think, is just wrong,” Boldt said.

Meena’s attorney, Matt Johnson of Devine-Millimet, agreed with Boldt. He asked that the appeal be dismissed. He said the store is not being expanded and is grandfathered. Above-ground items are staying in the same location they have always been and the only above-ground addition is a canopy over the diesel pumps. “There’s never been any intent to abandon the use of the store,” said Johnson.

After hearing from the attorneys and the public, the ZBA huddled to deliberate. Some members of the audience complained they couldn’t hear the ZBA’s discussion so ZBA members made an effort to speak into the microphones.

Most members of the pubic who spoke were in favor of the appeal.

“They need to meet these standards,” said Cory Lane of Porter, Maine, who argued the 50-foot setback should be met. “That 25 feet is bogus.”

Billie Lunt of Ossipee said Meena’s own actions caused the store to be abandoned. She said Meena closed the store in order install the underground gas tanks and then never reopened the store.

Lawrence and Johnson replied Meena wanted to be able to cover the tanks and make the site safe enough to reopen the store but couldn’t do so because of litigation. Johnson added that Meena installed the tanks based on “wrong information” from Effingham Zoning Officer Rebecca Boyden and Meena was later hit with a cease-and-desist order from the selectmen in May 2021. The order was lifted last September.

“We didn’t go willy-nilly trying to put tanks into the ground without permits,” said Johnson. “We tried to do the right thing, but we got the wrong information at the start of the project and that’s what brought us here. We’ve never tried to abandon the store. We’ve always wanted to open.”

Selectman Chris Seamans said Boyden made her decision based on town counsel Matt Serge’s opinion that the gas station had been abandoned but that Serge changed his mind a few months ago.

During the public hearing portion of the meeting, Seamans loudly accused Ossipee resident Rich Fahy of being “out of order” when Fahy approached the mic to react to what Seamans said about Serge changing his mind. Seamans also made loud, indistinct vocalizations apparently to try to drown out Fahy.

Lawrence allowed Fahy to make his point, and Fahy said that it was a “mystery” as to why Serge reversed course on the cease and desist.

On Jan. 5, Planning Board Chair George Bull said they had unanimously determined on Thursday that all the “conditions precedent” were met for the Meena application.

Conditions precedent are those that must be met before the planning board can sign off on site plans. They include soil testing under the proposed bio-retention basin and revising the location of the diesel pumps to be 25 feet from the right of way.