Effingham—May 22, 2023—Two days before last week’s special hearing on the Meena LLC gas station application, Effingham Zoning Officer Rebecca Boyden revoked her April 20 letter stating that the store had lost its grandfathered non-conforming use status after being closed for more than two years.

In her April letter, Boyden said a convenience store is a permitted use at the Meena site, but the company must bring the operation into compliance with current ordinance requirements as a result of its long period of discontinued use. She said a plan for the store should be added to the gas station Site Plan Application.

In a strongly worded response, Meena attorney Matthew Johnson told Effingham’s Town Counsel Matthew Serge that if Boyden’s letter wasn’t retracted by May 15, his client would appeal the decision to the ZBA and serve the town with a right-to-know request for all communications between the zoning officer and opponents of his client’s application.

“A representative of my client has personally observed Ms. Boyden communicating directly with individuals affiliated with these groups during public hearings,” Johnson wrote.

Days later, the letter was revoked, and the discontinued use issue was effectively taken off the table for the May 17 Planning Board hearing, even though the rescission letter states the parties agree the store has been closed for more than two years.

In his letter to Town Counsel, Johnson said his client wanted to reopen the store but was prevented from doing so because of the town’s cease-and-desist order, which was issued on May 12, 2021 to halt weeks of construction work performed at the site without town permits or an approved site plan.

The cease-and-desist order, issued by the Zoning Officer with the Select Board’s approval, was sustained by the Select Board six months later after Meena asked to complete the construction work while it waited for the Planning Board to review its construction plan.

Johnson blamed Boyden for the company’s decision to start work without approvals, saying she had provided “inaccurate information” about zoning ordinance requirements. The cease-and-desist order was “a direct result” of her inaccurate information, he wrote.

As has been previously reported, emails between Boyden and Meena agents Mark McConkey and Jim Doucette show the two agents accepted responsibility for not understanding the zoning ordinance, and understood that starting construction without approvals would put the company at legal risk.

Emails also show that Meena’s agents told Boyden and others that they started construction in order to take advantage of a “window of opportunity” to get the tanks in the ground rather than “wait for months” for the workers to be available again.

The cease-and-desist order halted the installation of underground gasoline storage tanks but did not address the store. Boyden told Meena, with the Select Board’s approval, that the company could operate the store while it applied for approval to pump gas, even while the construction cease-and-desist order was in effect, according to publicly-released emails.

Attorney Johnson said Meena operated the store on a “limited” basis to serve the construction workers until the cease-and-desist order was issued on May 13, 2021 and the workers left. The closure date Johnson cited is later than what has previously been reported, but still means the store has been closed for more than two years.

At last week’s Planning Board hearing, Attorney Biron Bedard, representing Meena’s abutting property owners, asked for a stay in the proceedings until the discontinued use issue can be resolved or the store is added to the site plan, a request Johnson called a “red herring” designed to stall the process.

Planning Board attorney Chris Boldt, who said he has known Zoning Officer Boyden for years, said the discontinued use question is a zoning issue for the ZBA, not an issue for the Planning Board. He said whether or not the rescinded letter is appealed, the Planning Board’s review process should continue.

With the concurrence of Planning Board Chair George Bull, the issue was tabled at the hearing.

This is not the first time that discontinued use, as defined in Section 703 of the ordinance, has figured in Meena’s legal proceedings. It became part of the evaluation process of the developer’s application to the ZBA for a variance to override the prohibition against gas stations in the town’s Groundwater Protection District.

At the ZBA’s request, Town Counsel Serge advised the board in an email that the previous gas station at the site, which was closed in 2015, became a discontinued use—that is, abandoned in a legal sense—after two years.

“The automobile service station use ceased to operate more than 2 years prior and, regardless of the reason for the operation ceasing, that use was abandoned,” Serge wrote to then-ZBA Chair Theresa Swanick.

Serge’s email became the basis of the board’s determination that pumping gas at the site was no longer grandfathered.