SACO – A developer who brought a case against the city of Saco in 2023, after the Planning Board granted preliminary approval of his proposed development, but rejected it on final approval, now says that his constitutional rights were violated.
As of Tuesday morning, Superior Court Justice Thomas McKeon had not ruled on whether the plaintiff and developer, Loni Graiver of 321 Lincoln Street Development LLC, can amend his complaint to include the new claims. The case is currently before the Business and Consumer Docket.
According to the plaintiff, these new allegations were prompted by the release of internal correspondence between Saco city officials, members of the Planning Board, and members of the public, which Graiver obtained via the Maine Freedom of Access Act request in mid March.
In filings dated May 1, Graiver’s lawyers argue that a member of the Planning Board, Robert Biggs, and a member of the City Council and Planning Board liaison to the City Council, Phil Hatch, did not disclose connections to a community group that was staunchly against the development. Based on this, they argue that Graiver’s right to an impartial hearing under Maine law, as well as his due process and equal protection rights under the U.S. and Maine constitution, were violated.
Graiver’s initial November complaint is a Rule 80B appeal – the civil legal procedure available to someone in Maine who seeks review of a municipality’s action. In a Rule 80B appeal, the court makes a decision by re-reviewing the facts considered by the government agency – in this case, the Planning Board.
Timothy Harris, a professor of property and land use law at the University of Maine School of Law, said that these types of cases are not that uncommon, where an applicant objects to a local land use determination – but applicants have a high bar to clear.
“The applicant has to show that the Planning Board or the local jurisdiction acted in an arbitrary or capricious manner. And that’s tough to show generally. The flip side … is that for an application to be rejected, there has to be some legal reason for it. So a community group’s opposition alone can’t be a reason to deny a permit,” he said after viewing Graiver’s initial filings in January of this year.
If the judge allows Graiver to amend his complaint and add independent claims, it would allow for a new trial with the introduction of evidence beyond the record of Planning Board action.
“We expect to go to trial and expect to win convincingly,” Graiver said in an email.
When asked for comment on the new developments, Saco City Manager John Bohenko referred to the city’s legal counsel, Daniel Murphy. Murphy declined to give a comment on the record.
Over the past few months, the two parties have traded arguments over the initial Rule 80B appeal. Graiver’s counsel has said that the city’s final decision was capricious because nothing about the project had substantively changed between preliminary approval and final approval. Saco’s counsel has argued that voting yes on preliminary approval does not preclude the Planning Board from voting no on final approval.
The plaintiff also invoked Maine’s housing crisis in his legal filings. “Permitting such instability in quasi-judicial determinations will disincentivize housing development and create more barriers to housing in Maine,” his counsel wrote in March.
Now, Graiver’s lawyers argue that Biggs disclosed that he was an abutter to the project but not that he was a member of Save Saco Neighborhoods Facebook page. Likewise, Hatch – who also lives near the project – did not disclose that he was a member of the Save Saco Neighborhoods Facebook page.
Also, “Hatch advocated against the Project in both his personal capacity as a resident of Saco and in his capacity as a City Councilor,” according to the plaintiff’s May 1 filing.
Biggs and Hatch did not respond to emails seeking a request for comment.
As a Planning Board member, Biggs had a direct role in reviewing and voting on the project. Hatch was appointed council liaison to the Planning Board on Dec. 4, 2023, after the board voted on the project.
In its reply, Saco’s legal counsel acknowledged that Hatch was opposed to the project, but says that he has a right to a personal view about the development and a right to petition to the Planning Board about it.
When it comes to Biggs, the city argues that even if he was a member of the Facebook page – which they call a “clearing house for local news, information and causes” aside from Lincoln Village – that wouldn’t be grounds to to allege bias or violation of equal protection and due process.
Hatch and Biggs did not respond to a question from the Biddeford Courier asking them if they are currently or were ever a part of the Save Saco Neighborhoods. They are both currently members of the Facebook group.
Also, in a newsclip from February 2021 – a few months before he joined City Council – Hatch is identified as a member of Save Saco Neighborhoods.
In addition to these specific arguments about Hatch and Biggs, the defendant has argued that Graiver’s claims should be adjudicated through the Rule 80B procedure, that the new claims don’t hold water, and that the motion to amend comes late, according to a May 2 filing.
Also, the city says that because the Maine Department of Transportation in March rescinded approval of the Traffic Movement Permit that they had previously granted the developer – the motion to amend is moot. Obtaining a TMP was one of the Planning Board’s conditions of approval.
The saga of Lincoln Village is now over two years old.
In early 2022, representatives of 321 Lincoln Village Development LLC had a meeting with city officials to discuss building a 332-unit residential development on land that Graiver owns. The site for the project – called the Lincoln Village development – is located between Bradley and Lincoln streets in Saco, near the St. Demetrios’ Greek Orthodox Church.
Graiver disclosed at the end of last year that the vast majority of the 288 two-bedroom units would have been priced between $300,000 and $400,000.
While Graiver secured preliminary application approval for the project in June 2023, opposition towards the project grew steadily throughout 2023 – largely spearheaded by the community group Save Saco Neighborhoods.
Residents aired their opposition to the project during multiple hearings held in fall 2023, with complaints ranging from concerns that the development was too big to concerns it would put pressure on traffic.
Members of Save Saco Neighborhoods also alleged that the city disregarded its own procedural and ethical code during the Planning Board approval process. They also took issue with the study that yielded the TMP initially issued by DOT, saying it did not take into account cyclists, motorcyclists and pedestrians in its analysis of the impact to traffic.
In October, the Planning Board rejected final approval of the project, with the development failing to secure a positive vote on five criteria: traffic; sewage disposal; aesthetic, cultural, and natural values; conformity with local ordinances and plans; and impact on adjoining municipality. Graiver’s counsel filed his lawsuit in November.
This article was edited May 23 to add that Hatch became a liaison to the Planning Board after the board voted on the project.
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