WEST BATH — A judge on Tuesday ordered the Bath Planning Board to take a third look at the third phase of the Wing Farm business park.

After a hearing at West Bath District Court, Judge Andrew Horton ordered the case remanded to the Planning Board, which approved the third phase in April. He had called for similar action in July, prompted by a lawsuit filed in May by Robert and Wendy Johansen in Sagadahoc County Superior Court.

In his first order of remand, Horton also noted that attorney Roger Therriault represented both defendant Bath and applicant West Bath. The judge suggested he was concerned about Therriault’s work with both sides.

On Tuesday, Therriault’s continued involvement – which ended last month – prompted Horton to send the case back again to the Planning Board, with a new attorney representing Bath.

The new attorney, Patrick Scully of Bernstein Shur, said last week that the Johansens alleged that Therriault had a conflict of interest or that the Planning Board process was conflicted because Therriault is also town attorney for West Bath. The dispute, in part, concerns an access road in Bath that leads to the lots to be developed in West Bath.

“In looking at the merits of that argument, I don’t believe that it has any legal significance,” Scully said. “… I don’t think there’s a conflict, and nor do I think that it’s an appealable issue, but I think the city concluded that in order to essentially take the issue off the table and to eliminate any further suggestion that there’s something inappropriate about that, that they should go out and bring somebody else in to handle the appeal from here forward. So that’s why they brought me in.”

Therriault noted in September that while West Bath is his client, he had never represented the town in this matter. He argued that there was no conflict between Bath and West Bath on the decision, explaining that if West Bath disagreed with the Planning Board’s decision and was inclined to appeal it, “I would have to step out of both Bath and West Bath, because clearly the interests of Bath and the interests of West Bath would be in conflict, and I would be unable to represent either party.”

Along with ordering another remand, Horton on Tuesday also ordered that a stay be put on any city action concerning the access road into Wing Farm phase three. That formerly unpaved road, King’s Highway, was improved to facilitate the third phase. Scully said the improvements are complete.

Horton also called for a notice of pending action, to be filed with the Sagadahoc County Registry of Deeds. Jenny Burch, the Johansens’ attorney, said the notice will inform people seeking records on the matter – such as a lender or prospective buyer – that there is litigation affecting the title.

Burch called the notice “a red flag that says ‘there’s more to this story, you better do your due diligence and find it out. The answer isn’t here in the registry; go to the courthouse.'”

The Johansens’ 520 Centre St. property does not abut the third Wing Farm phase, but it stands within 100 feet of two lots of that phase. The couple’s concerns include traffic growth from the development of phases two and three and potential impact to wetlands.

Centre Street leads into Wing Farm Parkway and King’s Highway.

The 25-acre, nine-lot expansion of Wing Farm will be built in West Bath. But all the road impact will be in Bath, where the first two phases are located. Bath’s approval was also required because about 350 feet of King’s Highway, where a sewer and water line will run, is in that city.

Horton initially denied a request from the Johansens to stop work on phase three. He said in July that his order was not a call for the board to overturn its decision, but rather “to re-examine the entire existing record, consider the issues that it did not address, and make the findings that it omitted.”

The Johansens have expressed concern over the project not having connectivity to any other street system and being a dead-end location. Planning Director Jim Upham noted in September, after the Planning Board voted unanimously to amend its approval of phase three, that one new condition of that approval was that businesses must install sprinkler systems approved by the Bath code enforcement officer and fire chief.

But Wendy Johansen maintains hope that a second and possibly third access road will be built. She said that about 10 years ago, at the start of the first phase, then-City Manager John Bubier told her that access roads would be built with the second and third phases.

Although the process “goes on and on,” Burch said, “these appellants have not been shot down. They haven’t brought claims that have been dismissed.”

Alex Lear can be reached at 373-9060 ext. 113 or alear@theforecaster.net.

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