By Wayne E. Rivet

Staff Writer

Hotel Bridgton is headed back to Superior Court review, but this time, the project has two stamps of town approval.

The Appeals Board voted 4-1 Thursday, Jan. 7 to uphold the Planning Board’s 3-0 decision in early November that proposed excavation work in the Stream Protection Zone does not constitute filling.

The Planning Board decision was a response to a remand order from Superior Court Justice Thomas R. McKeon, who agreed on appeal by Kennard Street abutters in August, to send the project back to the Planning Board to determine whether any of the work in the Stream Protection Zone is “filling.”

Abutters Susan Hatch along with Sigvard and Judy Von Sicard (“Neighbors”) filed a Rule 59 motion asking Justice McKeon to reconsider his June 6 decision, affirming the Bridgton Planning Board decision to approve the hotel project proposed by local developer Justin McIver.

Abutters argued that the Stream Protection Ordinance prohibits “filling” and the hotel project could not be completed without the use of fill.

“The provision in Item 27 of the Table in Section 14, including a ban on ‘filling’ presents a different problem. Neither side, however, points the court to anywhere in the record that construction of essential services in this project requires ‘filling’ as something distinct from ‘earthmoving’ or soil and water conservation,” the judge wrote in his Aug. 4 decision. “Unlike the term ‘earthmoving,’ the term ‘filling’ is not included exception for ‘earthmoving’ in Item 34. The Planning Board recognized that possibility by indicating that a condition of no ‘filling’ is in effect if the court finds it to be banned. The court, however, has not been presented with any definition of ‘filling’ or any specific activity to determine whether ‘filling’ will occur.”

Justice McKeon reviewed the Planning Board’s “Finding of Facts” regarding “fill” and found no mention of the term. The judge found that planners approved “grading, earthmoving and revegetation” to install the stormwater management system as part of soil and water conservation efforts.

The judge felt planners should determine whether the hotel project contains impermissible fill, “not the court.”

Attorney Lourie, representing Hatch and the Von Sicards, said the “essential object” of the Stream Protection Ordinance is to protect Stevens Brook. “No disturbance or limited disturbance of soil in the area, and no filling are allowed,” he said. “Mr. Bower says it is okay because it is an improvement. One man’s view of improvement not necessarily beyond dispute, like urban renewal, it may be good, but is it consistent with the ordinance?”

Lourie said the point of contention is not whether the work is an “essential service” but rather whether action includes filling. “If it includes fill, it is not allowed under the ordinance,” Lourie said.

Attorney Mark Bower, representing developer Justin McIver, countered that work such as grading, adding material and new vegetation are elements of the project’s soil and water conservation plan. He said the measures are to stabilize soils, help direct stormwater away from the brook to improve water quality, and to prevent erosion — all of which, Bower said, is “the goal of Stream Protection in the first place.” He added, “Previous findings of the board were sound and should be upheld.”

Planning Board Chairwoman Deb Brusini responded, “We’re charged with determining what filling is. It needs to be reasonable. My experience, filling a waterbody, filling a wetland is prohibited. Webster’s meaning — act of doing it. Mr. Lourie mentioned filling a low spot. It is not a depression area, it’s almost flat, there’s some slope, but not a depression being filled. Depression example I saw in the dictionary is something surrounded by higher ground, vernal pool, dried up vernal pool. I can’t see that on any contour of the map.”

Brusini crafted a summary as to how she felt the board was leaning: “I think where we are, general consensus that operations of recontouring and grading, laying pipes, digging essential services, hearing board dig trench lay pipe cover it not filling. Direct water away from hotel, lower phosphorus concentration, falls to soils and water conservation practices; filling and earth moving refers to filling in wetland stream or other waterbody, dumping or depositing into the ground or into the water, no dumping of any materials into water or into the ground; earth moving done to regrade area and provide proper runoff from the hotel.”

Ultimately, the Planning Board defined what they believe “filling” is; they don’t believe work proposed is filling; and found in terms of material used for recontouring and back filling pipes should be best management practices and use proper type of materials.

Last week, the Appeals Board faced one task — did planners make an error in interpreting the ordinance?

AttorneyJames Katsiaficas, representing the town, reminded AB members their focus was a narrow one — no new evidence would be considered, and they were to simply decide if planners’ ruling follows the ordinance.

The board opened the session voting 4-0 to accept statements Bower filed after a specified deadline.

“It’s my opinion that we give them a little leeway on that; we could contest it, but we should keep it as fair as possible and let both parties present their case,” AB Chairman John Schuettinger said.

AB member Kevin Raday agreed, noting that the town’s attorney urged the board to err on the side of getting everything in and be heard. 

As part of the public hearing, the Appeals Board heard short presentations by the opposing attorneys, Lourie and Bower.

Attorney Lourie opened saying the Planning Board “didn’t do what court asked them to do.” Lourie targeted the developer’s plan to recontour the property to achieve certain elevations.

“You have to put something in to get those grades up,” he said. “The judge instructed the Planning Board to give credence to ordinance’s ban on filling in the Stream Protection Zone. The lengthy decision by the Planning Board circumvents prohibition on fill in…The Planning Board took the word ‘filling’ out of context… if grading and moving existing soils, that is not filling? The Planning Board concluded filling of depression does not constitute filling or earth moving; if you follow that, you are doing better than me, I’m not following it. A clear finding, the Planning Board gave no credence that filling is not allowed in the Stream Protection Zone. If it was vegetating or resurfacing, we wouldn’t be here today.”

Attorney Bower suggested to AB members the case was not complicated — “site work is not filling.” Based on the definition of “filling” that planners decided to use, such work is not in the proposed hotel project, Bowers said. He then pointed that the purpose of the Shoreland Zoning Ordinance is to prevent and control water pollution. By recontouring the property and creating a stormwater collection system, the hotel project achieves those two goals unlike the existing mill.

Developer Justin McIver chimed in, “In simple terms, what we are doing here is protecting water quality than it is in the current site condition, isn’t that was the opposition wants, better water quality? This project improves the water quality, who can argue it makes this site better. We’re reducing phosphorus by a significant amount; everyone can agree we want to improve the water quality; it is very simple.”

The public hearing ended at 5:56 p.m., giving way to AB deliberation.

“I’ve read through this four times today,” AB member Bruce Hancock said. “It’s pretty clear. Fill and filling, not filling a hole; contouring the land, which is allowed in the ordinance; it’s pretty simple,” he said.

“To achieve recontouring, it seems like they have to bring in additional fill?” Schuettinger wondered. “The Planning Board decided that’s okay.”

AB member Richard Danis said, “What still sticks with me is the definition we use for ‘fill’ as noun or verb. The end result there would be a change in elevation; adding fill; if anyone can explain it differently to me, I’d like to hear it.”

Raday reminded the board what their charge is in this matter.

“(Attorney) James Katsiaficas schooled us on the idea not to substitute our view for the Planning Board’s. We’re not to parse their words, or give another opinion. Our job is to see if the Planning Board went beyond their powers.”

AB member Mark Harmon said Raday was right on the button. The Appeals Board denied Hotel Bridgton the first time the project landed on their table, but this time, the court is asking town officials to clarify one word — “fill.” Harmon made the motion that, “I don’t see legally no option than agree with Planning Board at this time” in regards to the description of “fill” planners used.

Katsiaficas added to the motion, that planners did not make an error in interpreting the ordinance.

Danis disagreed with the position. “What I’ve heard, Mark, the definition of fill, I can see where the Planning Board decision is in error because no matter how we look at it, some kind of earth will be trucked in (to affect elevation). I’m torn between doing this (build the hotel) to make soil erosion and water come off better for the stream and prevent erosion and pollution…but to change elevation in order to make this work, I’m seeing only way to change elevation is bring in some type of substrate or fill.”

The motion to support the PB decision passed 4-1, Danis against.

Katsiaficas will draft the decision within seven days, and then the Appeals Board will hold a brief meeting to read the Finding of Facts and Conclusion of Law via a Zoom meeting. Schuettinger will sign the document.

The town’s decisions will likely be appealed at the Superior Court level.