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After court order, Bath Planning Board amends OK for Wing Farm business park

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After court order, Bath Planning Board amends OK for Wing Farm business park

BATH — The Planning Board on Tuesday unanimously amended its approval for the third phase of the Wing Farm business park.

In July, Maine Superior Court Justice Andrew Horton ordered the board to take another look at its April approval of the project. Horton's order was prompted by a lawsuit filed by Robert and Wendy Johansen in May in Sagadahoc County Superior Court.

Jenny Burch, the Johansens’ attorney, said on Wednesday that Horton said he is likely to schedule a conference with Burch and Bath City Solicitor Roger Therriault to discuss the process that has taken place since he issued the order.

Therriault said Wednesday that the city will send a copy of decision to the court.

The Johansens’ 520 Centre St. property does not abut the third Wing Farm phase, but is within 100 feet of two lots of that phase. Their concerns include traffic growth from the development of phases two and three and potential impact to wetlands.

Centre Street leads into Wing Farm Parkway and King’s Highway, a historic unpaved road that will be improved as an access road into the third phase.

The 25-acre, nine-lot expansion of Wing Farm will be built in West Bath. But all the impact on roads will be in Bath, where the first two phases are located. Bath’s approval was also necessary because about 350 feet of King’s Highway, where a sewer and water line will run, is in that city.

Horton denied a request from the Johansens to stop work on phase three during litigation. He said his order was not a call for the board to overturn its decision, but instead “to re-examine the entire existing record, consider the issues that it did not address, and make the findings that it omitted.”

One new condition in the Planning Board’s approval Tuesday was that businesses that locate in the West Bath phase must install sprinkler systems approved by the Bath code enforcement officer and fire chief.

Planning Director Jim Upham noted that the project does not have connectivity to any other street system and is a dead-end location. If a fire were to occur in one of the buildings, it could be quelled by the sprinkler system while emergency crews are en route.

Horton noted in his order of remand that while Therriault’s firm represents both Bath, the defendant, and West Bath, the project applicant, “the court trusts that this will not be the case on remand. The Board’s duty is to make the additional findings and decisions called for in this order based on the evidence and the law, whether or not they favor the applicant. For the same law firm that represents the applicant to advise the Board on how to respond to this order of remand presents obvious problems and would complicate matters considerably.”

But Therriault argued that while West Bath is his client, “I’ve never represented them on this matter.”

He also pointed out that “there is no conflict between Bath and West Bath on the decision,” noting that if West Bath did not agree 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.”

Therriault said that as he understands it, as long as the parties’ interests are not in conflict, he could continue to represent Bath in this matter, “and I’m not there representing the interests of West Bath.”

Horton's order also stated that the Planning Board could not consider new evidence, but the applicant and plaintiffs were allowed to comment on actions the board should take to respond to the remand, Upham noted.

Burch made some comments, but Wendy Johansen was not allowed to talk about what had happened near her home during project construction, since that would constitute new evidence, Upham said.

Johansen said on Wednesday that she and her husband intend to pursue the case.

“It’s extremely frustrating and stressful,” she said.

Johansen said traffic outside her house has been dangerous, and that her request for flaggers has been ignored.

“The noise has been unbearable and has gone on seven days a week, literally, for 14 hours a day,” she said. “... The fumes from the diesel (have also been) unbearable.”

Upham noted that the plaintiffs had expressed a concern that the access road would cause damage and pollution to surrounding wetlands. But he said the road is being constructed so that the water flows into catch basins, and that one of the new conditions of approval was that the catch basins must be properly maintained and cleaned at least annually.

Alex Lear can be reached at 373-9060 ext. 113 or alear@theforecaster.net.