Effingham—February 8, 2024—Citing procedural and legal issues, abutters to the former Boyle’s Market property in Effingham filed a motion for the ZBA to rehear their appeal that the Planning Board violated zoning when it approved Meena LLC’s gas station site plan.

The ZBA voted 3-2 to deny the abutters’ appeal at a January 3 hearing that Board Chair Lawrence Edwards opened by incorrectly stating what the appeal was about. Later in the meeting, Effingham Selectman Chris Seamans tried to shout down a member of the public who was speaking.

Attorney Biron Bedard, who represents Ossipee residents Tammy McPherson and Bill Bartoswicz, said the hearing was “replete with deficiencies,” and called the board’s decision to deny the appeal “unreasonable and unlawful.”

Bedard said the audience could not adequately hear the proceedings, including the deliberations, because the board members “refused to use the available microphones in violation of RSA 91-A:2III(c).”

Moreover, ZBA members “appeared confused as to what was happening and what they were voting about,” and subsequently ruled on the appeal in its entirety rather than addressing each of the issues separately.

“It is difficult to discern what exactly happened, however, because, in addition to the poor audio during the hearing, the draft minutes of the hearing that are currently available are poorly written, incomplete, and inaccurate,” the motion reads.

Bedard noted that Lakes Region Planning Commission was apparently not advised of the hearing despite a 2022 Development of Regional Impact ruling in the Meena case that requires its notification.

“For these reasons alone,” Bedard wrote, “the ZBA should hold a rehearing.”

In regard to the ZBA’s denial of the abutters’ claim that approval of the Meena site plan violates zoning’s 50-foot setback requirement, Bedard said “Even Meena’s proposed site plans appear to acknowledge that these setback distances are applicable.”

The structures in question include a diesel canopy, diesel pump, gasoline pumps, fuel tanks, oil water separators and other storm management devices, all of which require a variance to the setback restrictions in order to be located where the Planning Board authorized them to be, according to Bedard.

Christopher Boldt, attorney for the Planning Board, argued at the hearing that raising the setback issue at this stage of the process was tantamount to asking the ZBA to change its decision to grant a variance for the gas station in 2021.

Bedard disputed that, saying the variance the ZBA granted to Meena provided relief from the prohibition against a gas station on its property, not relief from all requirements of the ordinance.

“The Planning Board is still required to make sure the site plan application conforms with all aspects of the Zoning Ordinance,” he said, pointing to Section 8 of the town’s Site Plan Review Regulations.

Meena argued at the hearing against the abutters’ claim that the convenience store lost its grandfathered status after being closed for more than two years, which would classify it as an “abandoned use.”

The company said its hands were tied because of the cease-and-desist order the town issued to halt the unapproved installation of gas tanks, and said it always planned to reopen the store.

The ZBA should have rejected both arguments, Bedard said, writing that “Meena created its own alleged inability to open the store by prematurely installing the underground storage tanks knowing there would be risks in doing so.”

In regard to the convenience store, Bedard pointed to Effingham’s ordinance, which states “A non-conforming use shall be presumed abandoned if the use has been discontinued for a period of two years or more.”

Bedard said Meena’s arguments that it never intended to abandon the store are irrelevant, citing a finding in a case, McKenzie v. Town of Eaton Zoning Board of Adjustment, that consideration of intent to abandon is not necessary when an ordinance defines abandonment without a consideration of intent.

The next scheduled ZBA meeting is March 6 at 7 p.m.