By Wayne E. Rivet

Staff Writer

If “fill” is needed to build Hotel Bridgton, the project could be in trouble.

Superior Court Justice Thomas R. McKeon sent 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.

“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.”

The Neighbors pointed to the Planning Board record to argue that work cannot be completed without the use of fill.

Judge McKeon wrote that “the concern here is whether the court has left a loose end.”

He reviewed again 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 Planning Board also permitted “earthmoving, vegetation removal and construction” as permitted, but there was no mention of “fill” in the main body of the board’s ruling.

Judge McKeon pointed to a “footnote” that the Planning Board imposed a condition prohibiting “filling” in the Stream Protection District if the court finds that the work involves “filling.”

“It is not clear if the footnote is intended to modify both aspects of the Board’s approval,” Judge McKeon wrote in his decision. “It is clear that although the ‘filling’ provision in Items 27 and 28 are an awkward fit to the regulatory scheme, they do unambiguously bar ‘filling’ in the SP zone.”

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

“To give credence to the ordinance’s ban on ‘filling,’ the Planning Board should first make a determination one way or the other whether the work in the SP (Stream Protection) will include ‘filling.’ Then, if necessary, amend the approval explicitly to prohibit filling in the SP District and provide whatever explanation is needed so that the applicant has clear direction on what is approved,” Judge McKeon wrote. “The Planning Board’s approval remains affirmed in all aspects with one exception.”

In granting the Neighbors’ motion to “alter or amend” the previous judgment, Judge McKeon sent the hotel project back to the Bridgton Appeals Board, which will hand the project back to the Planning Board to “make its own determination whether any of the work in the SP zone is ‘filling’ as described in the Shoreland Zoning Ordinance (Items 27-28) and make additional finding of fact and conclusion of law on that issue.”

Judge McKeon denied “additional relief” sought by the Neighbors.

On the procedural front, the hotel project will first be sent to the Appeals Board, which will then hand off to the Planning Board for its review regarding to "fill."