Do-over ordered on Bridgton Bottled Gas plan

By Gail Geraghty

Staff Writer

In a rare reversal, the Bridgton Board of Appeals has vacated, or canceled, a Nov. 3, 2015, permit granted by the Bridgton Planning Board for Bridgton Bottled Gas. The Appeals Board ruled unanimously Jan. 28 that the Planning Board — despite a three-month review — wasn’t given sufficient evidence in several areas to justify its approval of a new 30,000-gallon bulk storage propane tank at the corner of Route 302 and Raspberry Lane.

The Appeals Board ordered that the project be remanded back to the Planning Board to reopen the public hearing so that new evidence can be heard, related to abutters’ concerns about potential negative impacts to their residential side street.

Since that decision by the Appeals Board, appellants Robert and Rita Tyszka of Raspberry Lane have asked the Appeals Board to reconsider its decision, hoping to convince members that the project is not in compliance with the Comprehensive Plan. The Appeals Board, which had earlier ruled the project was in compliance, will meet tonight, Feb. 18, at 6:30 p.m. to decide whether to reconsider their Jan. 28 vote. If they agree to look further into that issue, a separate meeting will be scheduled to hear legal arguments from both sides.

In its initial appeal, the Tyszkas contended that the Planning Board’s findings were not supported by substantial evidence in the record with respect to: • Preserving and enhancing the landscape; • Relationship to surroundings; • Vehicular access; • Emergency vehicle access; • Municipal services; • Air pollution; • Water use; • Noise; and • Financial and technical capacity.

It took the Appeals Board two lengthy meetings with courtroom legal arguments on both sides, as well as frequent interjections of advice from their own attorney, before finally issuing a nine-page finding ordering the Planning Board to reopen the public hearing. They ordered the Planning Board to hold the hearing so they could hear new evidence in order to clarify its findings and conclusion, limited to the following review standards:

  • Pedestrian traffic conditions and pedestrian-vehicle contacts;
  • Impact on emergency medical services;
  • Consultation concerning air quality laws and regulations;
  • Impacts of noise from the property in terms of trucks arriving and leaving, and filling their tanks;
  • Whether the propane tank filling station is an industrial use and, if so, whether it constitutes a public nuisance.

The issues cited by the Appeals Board were only a fraction of the concerns raised by the Tyszkas. The couple also questioned whether an irregularity occurred when Bridgton Bottled Gas sold the property to Stone Road Energy, LLC shortly after the Planning Board approved the plans.

The Appeals Board agreed that the new owners must submit proof of their technical and financial capacity, just as Bridgton Bottled Gas had done. Since Stone Road has already agreed to do so, that becomes a non-issue.

The Appeals Board was careful not to substitute their own judgment as to whether certain requirements were met. Instead, they emphasized that the record showed that the Planning Board had insufficient evidence to rule as they did, and that they needed to have that evidence supplied in order for the approval to be valid. At their second meeting on the appeal, on Jan. 7, Chairman John Schuettinger read a statement of apology for what he said were “ill-considered” remarks that sharply criticized the Planning Board’s review of the project.

“Members of the Planning Board provide a vital service for our community, and it requires a great deal of time and commitment,” Schuettinger said. “It is rare that any of their decisions come before this board, and it is my hope that both boards can continue to work harmoniously and in the best interests of our fellow citizens.”

The Appeals Board’s decision stopped short of nullifying the Planning Board’s decision, which would have freed the Tyszkas up to sue the board in Superior Court. The Appeals Board also had the option of upholding the Planning Board’s decision, but chose this middle ground because they believed errors had been made in the review.

The Appeals Board’s finding stated, “In sum, we conclude that the (Tyszka’s) procedural claims of error, whether considered individually or collectively, are insufficient grounds to reverse the Planning Board’s decision.” The Appeals Board said it was “unpersuaded” by many other concerns about the process raised by the Tyszkas, other than the five review standards cited.

As example, the finding discussed the Tyszka’s claim of bias and conflict of interest by then-Bridgton Bottled Gas co-owner Todd Perreault, who acted in his role as the town’s Assistant Fire Chief and Emergency Management Director in helping Fire Chief Glen Garland review the project’s fire safety

protocols. Other allegations made by the Tyszkas were that there was an improper notification of abutters, construction of an entrance road before approval was granted and failure to get updated impact statements from department heads.

In appealing the Appeals Board decision, the Tyszkas stated, “We are not trying to be difficult in any way.” But they said the decision “failed to consider our very critical argument” about non-compliance with the Comprehensive Plan. The property is not in a growth area, the Tyszkas said, as maintained by the Planning Board. The Future Land Use Map in the 2014 Comprehensive Plan designates the property as being in a transitional area to the rural area, where “there is a certain quality of life that is cherished by those who live there.”

The Tyszkas said appealing the Bridgton Bottled Gas project has been a time-consuming and expensive process, but “We are simply trying to protect our home values and seek basic safety assurances.”

 

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