Aquifer protection meeting tonight in Gilford

With a little more than two weeks to polling day, a proposed aquifer protection ordinance has become the most hotly contested issue of the Town Meeting season.

Cumberland Farms, Inc. is buying advertisement in the local press urging voters to reject the ordinance. Meanwhile, tonight the Conservation Commission and Drinking Water Protection Committee, the chief sponsors of the ordinance, will host a meeting at Town Hall tonight, beginning at 7 p.m. when representatives of R.W. Gillespie & Associates of Saco, Maine, a geo-technical and hydrological firm, will address issues and answer questions arising from the proposed ordinance.

After both the Planning Board and Selectmen endorsed the proposal, the furor erupted when attorneys Phil Brouillard and Doug Hill, who represent Cumberland Farms, Inc., which plans a convenience store and gas station on property acquired from Public Service Company of New Hampshire at 1434 Lakeshore Road, charged that the ordinance would not only forestall their client’s plan but also hinder development throughout much of the town. After reviewing the ordinance in light of the issues raised by Brouillard and Hill, John Ayer, Director of Planning and Land Use, prepared a 14-point memorandum for the Planning Board highlighting what he considered the flaws and shortcomings of the proposal. Convinced by critics of the ordinance, both the selectmen and the Planning Board reversed their earlier votes and withdrew their endorsements.

Controversy turns primarily on the section of the ordinance listing those uses that would be prohibited in the aquifer protection district, which would encompass several major commercial centers — including the McIntyre Circle areas, Lakes Business Park, Village West, former Lemay property and Gilford Village — where all the gas stations in town are located. In a letter to the selectmen, Brouillard charged that the “unintended consequences” of the ordinance “will render a major portion of the town (including the CFI site) essentially undevelopable.” However, Stephen Nix, who drafted the ordinance, insists that such claims are grossly exaggerations and misrepresentations of the proposal.

The ordinance would delineate the aquifer protection district as a “zoning overlay district,” within which all properties “shall be subject to the requirements of the underlying zone and the following provisions (the more stringent shall apply.” In other words, although the zoning may permit a specific use, if the site is within the aquifer protection district the prohibitions of the ordinance would apply. However, the ordinance includes a “grandfather” clause, which provides that “pre-existing non-conforming uses may continue in this district in the form in which they exists at the time of the adoption of this ordinance unless they pose a direct hazard to the aquifer or are actually introducing some foreign substances (oils, salts, chemicals, etc.) into the aquifer.”

Among other things the ordinance would forbid the “subsurface storage or regulated substances, including

gasoline, diesel fuel, oil and other refined petroleum products,” along with “the subsurface transmission” of

these same products through pipelines. Brouillard and Hill interpret this language not only to prohibit Cumberland Farms, Inc. from building a gas station but also to forbid existing gas stations from replacing their underground storage tanks. They have also claimed that the prohibition would apply to the storage and use of propane, which is used by a number of businesses and residences, in contradiction to the

fire code.

Stressing that the prohibition is absolute, Hill explained that the ordinance fails to include what he calls any “performance standards” and “best management practices,” which would permit underground facilities that were designed, constructed, installed and operated in compliance with the specifications stipulated by federal and state environmental agencies. He noted that the ordinance would allow service stations, repair shops and junkyards “operated in accordance with New Hampshire state statutes, rules and regulations ... and Best Management Practices,” adding that the underground storage and transmission of fuel should be treated the same. For example, the model groundwater protection ordinance prepared by the New Hampshire Department of Environmental Services (DES) and Office of State Planning (OSP) suggests two regulatory approaches, either prohibiting “high risk” uses altogether or conditioning them on “performance standards.” The short list of prohibited uses in the model ordinance does not include “storage, handling and use of of regulated substances in quantities exceeding 100 gallons,” which appears among “conditional uses.”

Nix agreed that the ordinance would prohibit Cumberland Farms, Inc. from installing underground

storage tanks, but not forestall development of a gas station if the fuel was stored above ground, which he explained was the preferred practice in aquifer protection districts. The “grandfather” clause, he said, would allow existing gas stations to replace their underground storage tanks as long as they were installed and operated in accordance with the specifications set by the state. Likewise, Nix dismissed suggestions that the prohibition against underground storage and transmission applied to propane, explaining that because it is released as a gas and is insoluble in water, it does not threaten the aquifer and in regulated by the Clean Air Act.

The aquifer protection ordinance is one of a dozen proposed amendments to the zoning ordinance on the March 14 ballot.