Freedom—July 15, 2021—A final decision on granting a zoning variance for a gas station with underground storage tanks at Boyle’s Family Market on Route 25 was postponed last week after the Effingham Zoning Board heard testimony about the plan’s potential impact on drinking water.

The business, previously known as Dy-No-Mite Variety, is a convenience store selling groceries, beer, wine, pizza and cigarettes, according to its Google Search listing. Until 2015, the business also included a gas station.

In August of that year, owners David and Lynn Boyle removed the gas pumps and tanks rather than bring the operation into compliance with environmental regulations. A business closure report was filed with the state, and the tanks and equipment were removed under DES supervision, leaving only the canopy that had covered the gas pumps.

Now the question is whether the gas station can be reopened under new ownership.

Meena LLC, whose principal is Conway businessman Garg Pankaj, purchased the convenience store from the Boyles this year with the understanding that with the required state permits, they could reestablish a retail gas operation, according to Meena’s agents, Mark and Jacob McConkey.

The plan received initial approval by Effingham’s Zoning Board on March 29 and was sent to the planning board for review.

But opponents of the plan believe the ZBA should have denied the application. Effingham’s Zoning Ordinance prohibits gas stations in the town’s Groundwater Protection District, and Boyle’s Market lies squarely within that district.

Last week they made their case to the board and asked that it rule the application has regional impact, meaning the towns of Ossipee and Freedom would be granted abutter status in the matter. The board voted against making it a regional issue, but continued the hearing to Tuesday, July 20.

Complicating the matter is the fact that the new owner of the business has already installed the underground tanks.

Competing Interests
Central to the debate is Effingham’s Groundwater Protection Ordinance (GPO), which voters amended to town zoning 11 years ago to protect the Ossipee Aquifer, the main source of drinking water for Effingham and 13 other communities.

The GPO established a special Groundwater Protection District to “preserve, maintain and protect” groundwater supplies by “regulating land uses that may contribute pollutants to designated wells and to aquifers,” according to the ordinance.

Land uses permitted in Effingham by right or allowed by special exception are also permitted in the Groundwater Protection District unless they are specifically prohibited. Article 22, Section 2207-A (8) of the ordinance specifically prohibits gas stations in the groundwater district.

Meena LLC’s application, which was filed on May 14, asks for relief from that prohibition, and details how its request meets the five criteria required for a variance. It notes there was a gas station at the site long before zoning, and it operated “without incident” until the previous owner in 2015 made a “financial decision” to stop offering gas and remove the tanks rather than make them compliant.

“Gas sales are essential to the profitability of a modern convenience store business,” the document reads, noting that the applicant’s willingness to invest in a new gas station that meets state and local requirements would provide “an added convenience” to the residents in the area.

“Residents and passersby driving on Route 25 will see a lot similarly developed as it has been since the ’90s,” the application states.

Implying that a hardship would be imposed by the strict application of the ordinance, Meena’s agents said the property was sold to the buyer “with the understanding that with the required state permits…they could reestablish a retail gas operation.”

“The new owners have done everything they thought was required to reinstate the gas operation…but unfortunately they were not advised there was a local regulatory component they needed to comply with.”

In a letter to the ZBA opposing the application, local environmentalist Corey Lane wrote that “Just because the applicant did not do their due diligence prior to purchasing a convenience store in the Groundwater Protection District does not mean the Ordinance can be violated.”

Lane asked the ZBA to remember why gas stations were prohibited in the Groundwater Protection District more than a decade ago.

“The citizens of Effingham are fully aware of how important protecting their water quality is because they voted to prohibit the development or operation of a gasoline station in this area,” she wrote. “This Board has a sworn obligation to uphold the Zoning Ordinance that the citizens supported.”

Speaking at the meeting, Blair Folts, an Effingham resident and former executive director of Green Mountain Conservation Group, said that granting the variance would be contrary to the public interest.

“It puts drinking water at risk; it puts lake water in Ossipee Lake at risk; it puts the tributary Phillips Brook at risk; and it puts well water on abutting properties in Freedom, Effingham and Ossipee directly at risk,” she said.

In another written submission, Lorie Dunne, Effingham’s representative to the Green Mountain Conservation Group board, pointed out that it took more than four years of volunteer efforts to secure the aquifer protections embodied in Effingham’s zoning.

“A variance to allow a use that is expressly prohibited sets the stage for future prohibited uses to be allowed in sensitive drinking water protection areas,” she wrote, asking that the application be denied.

The next meeting on the issue will be on Tuesday, July 20, at 6:30 p.m. at Effingham Town Hall.