By Wayne E. Rivet

Staff Writer

Then, there were four.

When the Planning Board reconsiders the Hotel Bridgton decision on Oct. 20, Dan Harden and Mike Figoli will not take part in the deliberations. Both recused themselves Tuesday night — Harden (a full board member) citing possible bias, and Figoli (an alternate) declaring he would be unable to adequately review the full project record.

Harden explained that he was president of the Chamber of Commerce when the organization publicly supported the idea of bringing a hotel — at that time, not specifically the Hotel Bridgton plan — to Bridgton.

“The issue in front of you is not a question about statutory conflict of interest. If somebody had a statutory conflict of interest, you would want to take a vote on whether or not they actually have a financial or personal interest in the matter, and whether they need to recuse. Here, the concern is one of bias…The courts have said, anyone that might have bias against an individual or project because of prior statements or activities or simply because of frame of mind related to a project, then they should not participate in the proceeding at all — not participate in the discussions, they shouldn’t vote,” Town Attorney Aga Dixon said. “This was one of the concerns raised by Mr. Lourie (attorney for Save Kennard Street). He asserts that one or more new board members are believed to have supported the project before they became members of this Planning Board. I would advise that if anyone has made a statement in support of the project before they became a new board member they should recuse themselves.”

Board member Greg Watkins raised the question regarding whether action he was involved in as a selectman could cloud his status now as a member of the Planning Board.

“If you had been on another board or participated as a representative of another organization and spoke out in support or opposition of the project, you would want to disclose that and all likelihood I would advise to recuse,” Dixon said. “We are in the middle of a very complicated and lengthy procedure and would not want any undue process violations to undermine this proceeding. Allegations of bias are very serious, taken seriously be the courts, and if there is evidence of bias, it often results in invalidation of the full Planning Board proceeding, meaning we would be back to square one. I’d try to avoid that.”

While a selectman, the board voted to sell a piece of town-owned property, adjacent to the proposed hotel site, to developer Justin McIver.

“It is my understanding that the actions we take as a member of another board are exactly that — as a board, not as an individual opinion,” Watkins said.

Dixon responded, “If the board took a vote to come out with a statement in support or opposition, and you participated in the vote, then you would have to recuse. If you were merely the scribner — directed by other members of the board to present the letter on behalf of the entity is a different situation.”

Based on the attorney’s comments, Watkins admitted he was still unclear

“If I am the sitting chairman at the time or on the board as a member, the select board authorized the sale of land that later came up to be part of this project, is that going to cause problems?” he asked. “In a sense, one could say that we’re supporting the project by selling the land.”

Dixon responded, “I think that is one step removed from the type of bias the courts have indicated that would be reason for disqualification…The question you need to think through is when you were involved in the transaction and that decision, did you know what the land was going to be used for and were you supportive of that, and did you indicate your support? If the answer was ‘no,’ we were just dealing with a land transaction with no expectations or ideas of what was going on with that property, then you have no bias. If you did engage in the transaction knowing what was going to happen on the property and for that reason you supported it, then I would say you should recuse. It’s up to you. It’s how you feel about the situation. If you engaged in that transaction knowing what it would lead to, you should probably recuse. If you engaged in the transaction as your responsibility and duty as a selectman, you had no idea what was to come, then I don’t think it leads to a place where you would carry a bias.”

Watkins raised the question regarding discussions and comments made in executive session.

“What happens in executive session stays in executive session,” Dixon said. “It’s not something you are allowed to disclose publicly.”

Watkins informed planners he would not recuse himself.

At this time, the Planning Board has just Figoli as an alternate. A vacancy developed when Paul Tworog was elected to the Board of Selectmen, and thus left his post as PB alternate. If Watkins had recused himself, only three planners would remain to deliberate — chairperson Deb Brusini, Ken Gibbs and Dee Miller.

Brusini pointed out that members would not be reviewing any evidence or conducting any deliberation Tuesday.

Back in mid-August, Superior Court Justice Thomas R. McKeon remanded the Hotel Bridgton project back to planners to determine whether any of the proposed development work in the Stream Protection Zone is “filling.”

“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 (Save Kennard Street) 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 storm-water 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.”

What’s next?

First, Dixon suggested the board reject an offer to have the developer’s engineer present to provide answers to questions planners might have. The concern is that conversation could result in introduction of new evidence, which is not permitted. Planners will only review the existing record and research the definition of “filling” as outlined in town ordinances.

The developer has submitted an amendment to the project to remove the storm-water drain pipe in the Stream Protection Zone, thus negating the need for “filling.”

The board also voted 4-0 to reject a request by Attorney Lourie to be able to question planners “under oath” in regards to potential bias. Lourie, who joined the virtual meeting late, noted concerns he had regarding Watkins taking part in the review, but would read the meeting transcript to consider the discussion Watkins and Dixon had leading to Watkins’ decision not to recuse himself.

Planners will allow the legal teams to submit briefs with a deadline of the week before the board’s next meeting, Oct. 20, 5 p.m., which will start the review process.