By Wayne E. Rivet

Staff Writer

Applying Webster’s Dictionary definition to excavation work in the Stream Protection Zone as part of the Hotel Bridgton project, Bridgton Planners voted 3-0 last week that the proposed work does notconstitute “filling.”

The decision is 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 Boardto 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.”

Taking another look

Last Wednesday, planners spent nearly 2 ½ hours hearing opposing attorneys give their take on what is permissible within the ordinance, while also considering how the term “filling” is defined and how it applies to proposed work in the Stream Protection area.

The review fell into the hands of three planners — chairwoman Deb Brusini and full members Dee Miller and Ken Gibbs — as Dan Harden again recused himself from the proceedings (at the time the hotel was being proposed, he was Chamber president, and the Chamber came out in support of the town needing a hotel). Member Greg Watkins was unable to attend “due to a family matter.”

With three members present, the board had a quorum. Brusini did indicate that a final decision had to be unanimous.

The attorneys — Mark Bower for Hotel Bridgton developer Justin McIver and David Louire, representing Kennard Street abutters — made brief oral arguments limited to evidence already in the record. No newinformation could be provided.

Bower argued that area targeted for work in the Stream Protection area shows signs of previous activity (“gravel with grass growing through it”). Currently, a concrete culvert for drainage runs across the property and “increases the velocity of stormwater into the brook,” Bower noted.

Bower said 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.”

Attorney Lourie 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.

Lourie then went to the definition of fill — “material to fill a low spot; pouring something into a hole.” 

Lourie also argued the area in question is “presumably undisturbed native soil.”

Brusini pointed out that a test pit was dug in the Stream Protection district, according to a submitted topographical survey plan.

“Regardless of how the applicant twists it, you can’t approve an unlawful plan…Training tells you all ordinance requirements be met to have application approved…The board must give credence to no fill in the Stream Protection zone,” Lourie concluded.

First, planners dispelled the notion that the area has been undisturbed, citing the existence of an old fire hydrant, a water main leading to it, the presence of gravel and “soil somewhat disturbed.”

Miller said if a drain pipe is installed as part of a conservation plan to redirect water away from the brook, thus preserving water quality, it is reasonable to expect that the trench be filled.

Miller did question whether a conduit should be run there to power lighting along a trail. Brusini pointed out that aspect of the project was not under review, and reminded Miller that the reason planners approved it was in the name of public safety.

Brusini then tackled the issue of defining “filling.” 

“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.”

Gibbs added that outside materials could be brought in (including “soil superior to what is there”), as part of “good construction practices.”

In summation, Brusini said planners 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.

Planners voted 3-0 on the supplemental decision. 

Tuesday, Town Attorney Aga Dixon presented the decision to planners for review. A few revisions were made. Attorney Lourie had submitted “alternate findings of fact” for planners to consider, but Brusini advised that planners reject addressing the points.

“Last week, we fulfilled what the judge asked us to do…We should stick to the narrow scope of what the judge ordered,” she said, noting that such a review could result in planners considering “additional information and findings that the judge didn’t order us to.”

Gibbs agreed, telling Lourie that the board had already heard extensive arguments by both sides, and after careful deliberation, planners had made their decision.

“I assure everyone listening, we’ve gone over this very carefully, point by point,” Gibbs said.

Brusini added, “We’ve seriously considered all angles in deliberating.”

“There is no support of your finding in the record,” Lourie countered. “It will be sent back to you.”

“You made your point clear,” Brusini responded. 

Once the revisions are made, as board chairwoman, Brusini will sign the decision and it will be sent to Justice McKeon for review.