Judge sides with Bath planners on business park road decision

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BATH — A Sagadahoc County Superior Court judge has affirmed the Planning Board’s decision concerning the third phase of the Wing Farm business park.

Justice Andrew Horton’s Sept. 28 written decision followed a hearing on the matter three weeks earlier. At issue were waivers the Planning Board granted for an improved access road into the development.

Those waivers allow the maximum grade of 5 percent to be increased to 8 percent, the minimum width of the road to be 24 feet instead of 30 feet, and the 400-foot minimum center-line radius to be decreased to 200 feet.

Bath’s attorney, Patrick Scully, noted that West Bath had requested the waivers “in part because there are wetlands in that area, and they were trying to build the road in a way that would minimize the wetlands impact.”

Jenny Burch, the attorney for Robert and Wendy Johansen, who sued, argued that the waivers can present traffic-related dangers, such as the possibility of trucks tipping over while they take the sharper turn, without the elevated embankments.

But Horton accepted the Planning Board’s findings, writing that “the Third Amended Notice of Planning Board Decision granting these waivers is supported by evidence on which a reasonable mind would rely. This evidence indicates that special circumstances exist, making the waivers appropriate.”

He added that the Planning Board’s “ability to infer that the waivers would result in a smaller footprint and, thus, a reduced impact on the wetland is sufficient evidence to support granting the waivers.”

The Planning board originally approved the third phase in April 2010, but the lawsuit filed in Sagadahoc County Superior Court by the Johansens the following month convinced Horton to remand consideration to the Planning Board. The Sept. 7 hearing followed Horton’s order of a second remand last December, and the board approved a third amended notice of decision in May.

Although the 25-acre, nine-lot phase of Wing Farm is an expansion of the business park and will be built in West Bath, all the road impact will be in Bath. Bath’s approval has been required because water and sewer lines will run along about 300 feet of a formerly unpaved road known as King’s Highway.

That road, which has been improved to facilitate the third phase, begins in Bath and leads to the lots to be developed in West Bath.

The Johansens’ 520 Centre St. property does not abut the third Wing Farm phase, but sits within 100 feet of two lots of that phase. Centre Street leads to Wing Farm Parkway and King’s Highway.

The couple’s concerns have included the impact of the access road work on wetlands, as well as the project’s lack of connectivity to any other street system and traffic growth caused by the development of the second and third phases.

The remaining issues before the court last month were the waivers the Planning Board granted for the improved access road.

“I’m very pleased with (Horton’s) decision,” Scully said Tuesday. “I think it reflects the fact that … the judge was being very careful to make sure that the Planning Board had properly done its job, and had paid attention to the concerns that the plaintiffs had raised. I think at the end of the day, the judge correctly found that the Planning Board had done its job, and it didn’t act unreasonably, and that’s really all we can ask for.”

Burch on Monday called the process “a three-round appeal. The Johansens won Round 1, and then they won Round 2.”

“We got everything we wanted, except for one little thing,” Burch said, referring to the waivers on the access road discussed in the third round. “So we went back about the one little thing and we didn’t get that.”

Concerning the other issues the Johansens had raised, Burch said last month that whether or not they agreed with the decisions the Planning Board reached, “they came up with a conclusion which was based on a finding which was based on evidence in the record, and that’s their job.”

She said she and her clients were pleased with some of the board’s findings, including that Anchor Road should be improved for use as an emergency exit from the Wing Farm subdivision. The Planning Board called for that requirement to be a condition of approval of the road running from Bath into the project.

“That’s the biggest thing as far as what we feel like we’ve gained,” Wendy Johansen said after the hearing.

Burch noted that the Johansens had other victories, too, including a provision that the Bath Planning Board will review every site development permit for the West Bath side of Wing Farm.

Horton awarded the Johansens “their allowable costs incurred prior to the first and second remands.” He gave Bath “its allowable costs incurred after the case was remanded for the second time.”

Scully said the Johansens could still appeal the case to the Maine Supreme Judicial Court.

In an email Monday, the Johansens said “we are pleased that we made progress. This lawsuit was never about us personally. To know that the Anchor Road will have to be completed before more sites are developed is wonderful. People that work in the Industrial Park; children and teachers at Head Start, all need to be protected.”

They said they will try to get Bath to create “an impartial Board of Appeals, so that citizens will have a local group to address. No one person (or couple) should have to sue their city.”

Asked whether they would appeal Horton’s decision, the Johansens said “we are not sure about our future plans. It’s time to do some deep breathing.”

Alex Lear can be reached at 781-3661 ext. 113 or alear@theforecaster.net. Follow him on Twitter: @learics.

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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.