Bias alleged in housing complex denial 2 Orono planners believed to have decided fate of project before public hearing

ORONO – Local attorneys for Peregrine Developers are alleging that two members of the town’s planning board “were plainly biased” last November when they voted down the Rumford, R.I., company’s proposal for a 153-unit housing complex.

Ed Bearor and Timothy Pease submitted a new brief last week in Penobscot County Superior Court stating that board members Henry Metcalf and Christa Schwintzer appeared to have made up their minds before the public hearing section of the November meeting when both read from typed denials.

Originally proposed for the end of Colburn Drive, the 20.6-acre University Courtyard at Penobscot Commons was planned to have 494 beds spread among one-, two- and four-bedroom apartments in two buildings to be rented by both students and nonstudents.

By a vote of 4-3, the planning board denied final approval in November on the grounds that the two-building complex was too characteristic of a dormitory – a use not allowed in the forestry and agriculture zone where the project was proposed.

Bearor and Pease appealed the decision with the town and Superior Court in Bangor. The town’s board of appeals upheld the denial in February.

According to the brief, the bias of Metcalf and Schwintzer was further confirmed at that Feb. 26 appeals meeting when both planning board members testified as advocates against the project and “qualified themselves as opponents.”

“Such unabashed advocacy verifies what was earlier suspected when both arrived at the final planning board hearing with written denials in hand,” the brief stated.

While he did prepare his remarks based on issues in previous planning board meetings, Metcalf said Monday that he hadn’t made a decision about the application before the meeting.”I had a prepared statement to make it clear where I stood,” Metcalf said. “However, depending on any testimony that came up that evening, I was perfectly free to change anything in that statement or not use it all.”

Schwintzer was not available for comment Monday.

The plaintiffs’ brief supported an amended complaint submitted to Superior Court after the February appeals meeting. Similar to the original complaint, the lawyers maintain that the planning board and board of appeals erred in concluding the complex was a dormitory, and said both failed to consider that the complex meets the town’s definition of a multifamily dwelling.

The project was private and not affiliated with the nearby University of Maine.

As a result of “existing and irreversible bias,” the attorneys also requested in the brief that the court set aside the votes of Metcalf and Schwintzer, thereby shifting the vote to 3-2 in favor of the application. As an alternative, the attorneys requested that the court remand the case to the planning board with the instruction that Metcalf and Schwintzer not be allowed to take part in the review process.

According to a schedule approved by the court, attorneys for the town of Orono are expected to file a responding brief within a month.