Court orders Bath Planning Board to reconsider business park approval

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BATH — A judge last Friday ordered the Planning Board to take another look at its April approval of the third phase of the Wing Farm business park.

Justice Andrew Horton’s ruling came in a lawsuit, filed by Robert and Wendy Johansen in May in Sagadahoc County Superior Court, that appealed the Planning Board’s April approval. Represented by Bath attorney Jenny Burch, they raised concerns about traffic growth from the development of phases two and three and about potential impact to wetlands.

While their 520 Centre St. property does not abut the third Wing Farm phase, the Johansens live within 100 feet of two lots of that phase, Horton noted. Centre Street leads into Wing Farm Parkway and King’s Highway, an unpaved road that will be improved as an access road into the third phase.

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

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

City Solicitor Roger Therriault noted last week that the Johansens and the city had agreed to the remand.

Horton said the review is not a chance to reopen the record to include new evidence.

“The problems with the Planning Board all center on inadequate findings – meaning that the Board in its written decision failed to make findings on matters that the state statute and/or the Bath Subdivision Ordinance require be addressed,” Horton wrote. “If the court concluded that there was insufficient evidence to support the Board’s decision to approve the Phase III subdivision, the court would likely be constrained to vacate the approval. The court also might well have granted the Plaintiff’s request for stay of construction. However, because the deficiencies in the Board’s decision relate to its findings or lack thereof … the appropriate response is to remand for further findings without nullifying the approval.”

Horton noted that if the Planning Board opts after its review to stand by its approval, with or without extra or different conditions, the Johansens can renew their request for the approval to be overturned.

Among the issues the Johansens raised was the impact of King’s Highway on wetlands. Although the board found that the subdivision was not within 250 feet of a river, the Johansens and Burch pointed out that the city subdivision ordinance also applies to closeness to a wetland. The board must decide whether the application complies with ordinance standards regarding the wetland.

Therriault said the town of West Bath is preserving other wetlands to make up for the impact made by Wing Farm. He also said the Bath Planning Board needs to look at the wetlands issue again.

The Johansens also expressed concern that the Planning Board waived requirements of the subdivision ordinance and a plan for infrastructure construction, but that the board did not make the necessary written findings of fact and conclusions. Wendy Johansen pointed out that the existing road is already hazardous, particularly with many people walking on the road.

“We put it out there that you can’t grant a waiver unless you make sure that it’s not going to negatively impact health, safety and general welfare,” Burch said.

Therriault said the waivers were intended to reduce the impact of the road on the wetland area. He noted that while there is nothing in the decision about why the board granted the road waivers, “it’s crystal clear (in the record) that it was a legitimate, bona fide decision by the Planning Board, given competing interests, but it didn’t get into the (written) decision.”

Therriault pointed out that the road has passed federal and state standards.

“It’s not like we’re trying to slide something by here,” he said.

The Johansens have also taken issue with the lack of a second access road. Horton pointed out that the connectivity provisions in Bath’s subdivision ordinance “require street connectivity whenever possible.”

When connectivity is not feasible, Horton said, “the Ordinance appears to mandate that the Board incorporate at least one of several enumerated ‘measures’ into the design of the subdivision, which in this case would mean the access road. … In this case, the Board does not appear to have considered connectivity in its written decision or decided whether it was feasible, contrary to the requirement of the Ordinance.”

Johansen said she was told during the planning stages for phase one that Wing Farm would have a second access road build from Anchor Road during phase two.

“If one of those tractor trailer trucks tips over in the winter time, you will not be able to get an emergency vehicle in beyond that point,” she said.

Therriault said Bath’s codes call for a second access road only when possible, and that West Bath’s codes have no language concerning connectivity.

The Johansens also expressed concern about the development’s impact on traffic conditions on the road outside their house.

“The board’s decision said that ‘with certain conditions,’ there won’t be a problem,” Burch said. “But what are those ‘certain conditions?’”

Therriault said a traffic study and DOT permit say the intersection of Congress Avenue and Centre Street, which leads into Wing Farm Parkway, is “adequate for the present. … The big problem is the vehicles turning.”

He noted that a traffic light will move the stop lines to allow for larger vehicles to have ample turning space.

“(A light) is going to be the ultimate fix if in fact it needs to happen,” Therriault said. “But we’re not there yet, and we don’t know what the build-out is going to be.”

He said Bath and West Bath would conduct signal warrant analyses at 50, 75 and 100 percent increases of traffic volume. A signal could be deemed warranted at 50 percent, negating the need for the next two levels of study, or it could be found at 100 percent that a signal is not warranted.

Therriault said Horton had noted last week that the problem was not with the Planning Board’s process, but rather its written decision.

“There was sufficient evidence in the record to support what the Planning Board did; it just didn’t get into the decision,” Therriault said. “The actual written decision requires that (the Planning Board) make findings of fact and conclusions of law to support what their decision is. And some of that is either incomplete (or) missing, but it’s there in the record … (the board) just didn’t put it in (its) decision.”

Alex Lear can be reached at 373-9060 ext. 113 or

Wendy Johansen, left, and her husband Robert filed an appeal in May against the Bath Planning Board’s approval of the third Wing Farm business park phase. They are represented by Attorney Jenny Burch, at right. A Maine Superior Court justice has issued an order of remand to the board that requires it to take another look at its findings.

A Maine native and Colby College graduate, Alex has been covering coastal communities since 2001, and currently handles Bath, Topsham, Cumberland, and North Yarmouth. He and his wife, Lauren, live in the Portland area, and Alex recently released his third album of original music.