BATH — A lack of a quorum Tuesday prompted the Planning Board to postpone its third look at the third phase of the Wing Farm business park.
Board members Andy Omo and Donald Rogers were absent, and Amy Fitzpatrick had resigned, leaving four voting members in attendance Tuesday. Planning Director Jim Upham said the city’s land use code states that a Planning Board quorum consists of four members and that no business could be conducted without a quorum. Fewer than that number could decide to postpone the meeting to another date, he added.
But Paul Fraser recused himself, saying that Jenny Burch, the attorney for Robert and Wendy Johansen, also represented him. With three voting members remaining, the board postponed the Wing Farm review until its March 15 meeting.
A lawsuit filed last May in Sagadahoc County Superior Court by the Johansens prompted Justice Andrew Horton to remand the third Wing Farm phase to the Planning Board, which had approved the project the previous month. After a hearing last December in West Bath District Court, Horton ordered a second remand of the case.
In his first order of remand, Horton noted that attorney Roger Therriault represented both defendant Bath and applicant West Bath. The judge suggested he was concerned about the attorney’s work with both sides.
Upon revisiting the matter last September, the Planning Board voted unanimously to amend its approval of phase three. But Therriault’s continued involvement – which ended last November – prompted Horton to send the case back again to the Planning Board, with a new attorney representing Bath.
The new attorney, Patrick Scully of Bernstein Shur, noted at the time that the Johansens alleged that Therriault had a conflict of interest or that the Planning Board process was conflicted because Therriault is also town attorney for West Bath. But Scully disagreed that there was a conflict, a point echoed by Therriault.
Therriault noted last September that while West Bath was his client, he had never represented the town in the Wing Farm case. He argued that there was no conflict between Bath and West Bath on the decision and explained that if West Bath disagreed with the Planning Board’s decision and was inclined to appeal it, “I would have to step out of both Bath and West Bath, because clearly the interests of Bath and the interests of West Bath would be in conflict, and I would be unable to represent either party.”
Along with ordering another remand, Horton last December also stayed any city action concerning an access road into Wing Farm phase three. That formerly unpaved road, King’s Highway, starts in Bath and leads to the lots to be developed in West Bath, and it was improved to facilitate the third phase. Scully said at the time that the improvements were complete.
Horton also called for a notice of pending action, which was to be filed with the Sagadahoc County Registry of Deeds. Burch said the notice will inform people seeking records on the matter – including lenders or prospective buyers – that there is litigation affecting the title.
Burch’s clients, the Johansens, live at 520 Centre St., a property that does not abut the third Wing Farm phase, but stands within 100 feet of two lots of that phase. Centre Street leads into Wing Farm Parkway and King’s Highway.
The couple’s concerns include traffic growth from the development of phases two and three and potential impact to wetlands.
The third Wing Farm phase – a 25-acre, nine-lot expansion of the business park – will be built in West Bath. But all the road impact will be in Bath, where the first two phases are located. Bath’s approval was also necessary since about 350 feet of King’s Highway, where a sewer and water line will run, is in that city.
The Johansens are also concerned about the project not having connectivity to any other street system and being a dead-end location. Wendy Johansen said she hopes a second and possibly third access road will be built.
Burch said after Tuesday’s meeting that she appreciated the Planning Board’s decision to postpone discussion.
“If someone is before a board, it’s nice to have the whole board there,” she said.
Alex Lear can be reached at 781-3661 ext. 113 or email@example.com.