By Wayne E. Rivet

Staff Writer

Whether Hotel Bridgton — as presently proposed — is built or not rests in the hands of a Superior Court judge.

By a 4–1 vote last Wednesday, the Bridgton Board of Appeals reversed the town’s planning board’s decision to approve the hotel targeted for the former Saunders Mill site on Kennard/Bacon Streets.

Voting to reverse and thus side with the appeal filed by Susan Hatch, Sigvard and Judy Von Sicard and Save Kennard Street were John Schuettinger (board chairman), Mark Harmon, Sharon Abbott and Bruce Hancock. Voting against was Kevin Raday.

Developer Justin McIver, owner of Main Eco Homes of Bridgton, will appeal the reversal.

“Absolutely. In making their decision, the Planning Board spent a lot of time and did a lot of research on this project. It’s too bad that it has been reversed after all the effort they put in,” McIver said. “Now, a judge can look at it without any bias.”

McIver said he received “overwhelming support and feedback” from the public following last week’s Board of Appeals’ decision.

“It’s been unbelievable,” he said. “Several people have told me that the reversal wasn’t right.”

Before tackling the six items of contention, Schuettinger noted that Attorney Mark A. Bower, representing the developer, had raised four points prior to the board’s hearing.

One, he questioned whether the board understood their role in the appeal process.

“It was apparent that the board was under the misimpression that this is a de novo proceeding — essentially evaluating the project on the merits rather than the planning board’s decision. That is, the board seemed to view its role as deciding whether the project is a good idea or not, rather than whether there are reversible flaws in the planning board’s decision,” Bower wrote.

Schuettinger pointed out that Town Attorney James Katsiaficas had contacted BOA members to explain, again, their role in the appeal process. In a memo dated Nov. 1, Katsiaficas pointed out that Bridgton “has chosen, as have many municipalities in Maine, to have the Board of Appeals conduct appellate review of planning board decisions. This means that the Board of Appeals’ role is limited to reviewing the planning board decision and the record of the planning board proceeding to determine whether the decision (of the PB) was arbitrary or capricious based on error of law or in findings of fact not supported by substantial evidence in the record…the BOA should limit itself to reviewing the evidence presented to the planning board and determining whether the planning board committed error in making its decision.”

In regards to “arbitrary and capricious,” Katsiaficas noted the law court stated that it could not find an administrative agency has acted arbitrarily or capriciously “unless its action is willful and unreasoning and without consideration of facts or circumstances.”

Secondly, Bower raised the question whether a BOA member was indeed acting as an “impartial” decision maker.

“At least one of the board members is apparently biased against the project, as she said she ‘reluctantly agreed’ to find that a provision was inapplicable, when it clearly was,” Bower wrote. “She also made other comments during the (previous) meeting that indicated her bias against the project. The applicant is raising this issue of bias now in order to preserve it for appeal.”

BOA chairman Schuettinger responded, “I think that shows me, to my mind, is that this is a person who has considered the issue quite clearly and even though she may feel differently personally, she feels bound by her duty as a quasi-judicial official to rule correctly on those matters. So, I don’t think there is anything to worry about with that.”

No other discussion occurred, and Schuettinger moved on to the ground rules for the evening.

In his letter, Bower raised a final point that “an ordinance must be interpreted as a whole, using common sense and with a goal of avoiding absurd, inconsistent or illogical results,” citing Jordan vs. City of Ellsworth, 2003.

Before tackling Item 1 of the appeal, Katsiaficas stressed that the BOA was “reviewing” the planning board’s decision, “not itself reviewing the project — that’s the most important distinction to draw on…You are not hearing about this project from scratch. You are hearing the planning board’s decision. Your job — determine if the decision of the planning board was arbitrary or capricious or in error of finding of fact or law.”

What is considered arbitrary and capricious? “When the decision is willful and unreasoning without consideration of facts and circumstances,” said Katsiaficas, referring to a law court decision. He went on to say, “When you look at an ordinance, you look at its plain meaning and definitions. If the meaning is clear, it is the end of the search. If you find it difficult to construe, you look at its context — it’s purpose.”

Decision: Either sustain or reverse the planning board’s rulings.

And, the burden falls on the appellants.

Although the hearing lasted nearly three hours, the appeal won when BOA members voted 3–2 to reverse the PB’s decision that the proposed hotel structure is compatible in scale and size with the surrounding neighborhood.

The town’s Site Plan Review Ordinance states, “Proposed structures…shall be harmonious with the terrain and existing buildings in the vicinity and shall be of compatible scale and size.”

Planners compared the hotel’s scale and size to structures within 1,000 feet — a measure Schuettinger felt was “arbitrary” and “nothing in the ordinance defines distance from a site” — which included commercial buildings such as Renys, NAHGA insurance and the Magic Lantern.

To make the hotel fit with its surroundings, the developer proposed to vary roof lines, use wood-like trim and clapboards, natural stone and shingles, while also reducing the scale by eliminating the conference room/restaurant and limiting the height of the structure to not exceed 35 feet. The proposed three-story hotel has a total footprint of 15,355 square feet and total floor area of 37,902 square feet, including 66 rooms, indoor pool house and fitness center.

The appellant argued that the hotel is twice as large in area and volume than the mill it replaces and so it is not compatible scale and size. They also argued that comparing the hotel to Main Street structures rather than to the residences in the surrounding neighborhood is a “misinterpretation or misapplication” of the Site Plan Ordinance, which constitutes “legal error.”

When considering if the plan is harmonious with the surrounding neighborhood, Abbott said, “Arbitrary and capricious does not necessarily have to be applied. We can go with looking at the fact that the spirit of the ordinance was not recognized.”

As for “vicinity,” she added, “(It) means the immediate neighborhood of the hotel, and the point of the ordinance is to protect the neighborhood. Clearly, Main Street is not part of that residential neighborhood.”

Schuettinger went back to the 1,000-foot radius, saying “choosing that distance was arbitrary…so they could include the buildings on Main Street.” He decided to take a look at what fell into the 1,000-foot radius from the hotel site and found that “it includes a lot more residential structures than commercial structures.”

“I felt that if you decided this was the standard (1,000 feet), then you have to include everything that falls within that 1,000-foot radius,” Schuettinger said. “…Since that 1,000 feet encompasses so many residential buildings, opposed to commercial, deciding it was compatible with the neighborhood to me seemed a bit capricious, that they choose to look at the commercial buildings and not so much at the residential buildings.”

Board member Kevin Raday reminded the group it was not their directive to substitute their judgment for the planning board’s judgment.

“They had to pick a figure, you don’t like their figure. Okay, so is it an outrageous figure, off the wall figure? Did they go to Naples to make this comparison? No, they used 1,000 feet. The alternate (proposed by the appellant) was to just use Kennard Street. So, that would exclude every other part of the block that went on to Bacon and Main Street. Is that reasonable to you?” Raday asked. “It is one block — Kennard, Bacon, Main and Highland. Are we to say that’s not the neighborhood, one block? Most people think of a block as part of their neighborhood.”

“Unless it’s divided by a brook,” Schuettinger interjected. “It’s my take on the thing.”

“Aren’t you substituting your judgment for theirs?” Raday said. “You need to show that theirs wasn’t appropriate. I don’t think we can do that…A thousand feet is pretty small, what is it, three football fields?”

“We can agree to disagree,” Schuettinger responded.

Abbott chimed in, “The point is, when you are there on Kennard and Bacon, you see that’s a neighborhood.”

“You see the trees,” Raday countered. “You practically don’t see the next house. We shouldn’t be talking about that. We should be talking about if they (PB) did something wrong. I don’t see them doing something wrong.”

After just under an hour into the hearing, the Board voted 3–2 to reverse the planning board’s decision on compatibility.

Item 2 included three parts. In eight minutes, the Board voted unanimously to sustain planners’ decision to allow a drain pipe in the Stream Protection District as part of a stormwater management plan and phosphorus control system.

After 18 minutes of discussion, the board voted 3–2 (Abbott, Harmon against) to sustain planners’ decision regarding the drain pipe since installation would require earthmoving and filling in the Stream Protection District.

Finally, the board reversed part “C” by a 3–2 vote ruling the storm drain pipe is a “structure,” (thus an error of law had occurred) which is prohibited in the Stream Protection District. Officials pointed to a “conflict” between two town ordinances that might need to be reviewed.

Item 3, the board sustained the PB’s decision, 3–2 (Abbott, Harmon against) regarding grading, earthmoving and contouring in the Stream Protection District as part of the stormwater management plan.

Initially, Harmon made a motion to reverse the PB decision, but the motion failed 2 for, 3 against.

The appellant argued the proposed filling had little to do with erosion control, but was to increase land elevation where the hotel was to be located above the flood zone.

Item 4, that the planning board finding that there were significant existing compacted gravel areas in the Stream Protection District was unanimously sustained.

Item 5, a 3–2 vote to reverse the PB decision that storm drains and electrical lines within the Stream Protection District were “essential services.”

Item 6, the board sustained planners’ decision that the proposed replacement structures would not increase any nonconformance with respect to the General Development District setback, as the existing structures are set back no more than 20 feet from Stevens Brook and the replacement structures will be set back at least 33 feet from the brook. The vote was 4–0, 1 abstention (Abbott).

With planning board decision reversals, the appeal was granted by a 4–1 vote (Raday against). Board members instructed Katsiaficas to draft their findings and votes, and agreed to have chairman Schuettinger sign off on the board’s behalf.

Once the decision is rendered official, an appeal will be sought at the Superior Court level.