Two days after the Boothbay Board of Appeals upheld a decision to revoke a permit granted to Coastal Maine Botanical Gardens to allow a $30 million expansion, attorneys for the gardens sued the town charging violation of the Civil Rights Act.
In a complaint filed Dec. 20 in U.S. District Court, Portland attorney George F. Burns, representing the botanical gardens, alleged the town of Boothbay violated the gardens’ 14th Amendment rights to due process of law.
Citing bias and violation of due process, the gardens asked the court to reverse the Board of Appeals’ decision.
Jodie and Vaughan Anthony and their sons, Jason and Kevin, whose property abuts the gardens, appealed a development permit granted to the gardens by the Boothbay Planning Board in 2016 to build what would eventually include a new visitors center and gift shop, a restaurant in the existing visitors center, a 16,000-square-foot horticulture research and production facility, and a nearly six-story conservatory, along with expanded parking, formal gardens and trails.
In appealing that decision, the Anthonys and other opponents, including the Boothbay Region Water District, cited, among other concerns, further degradation of the water quality of nearby Knickerbocker Lake, already listed by the state as “most at risk from new development.”
William Cullina, the gardens’ executive director, said the expansion was necessary to accommodate the growing number of visitors, many of whom attend the annual Gardens Aglow lights display in December.
Despite the appeal, the gardens began construction in early 2017.
The suit claims the board indicated in a 4-to-1 straw vote in September that it would affirm the gardens’ permit, but support for the permit “somehow reversed just three weeks later.”
Following that meeting, the suit alleges, board members Stephen Malcolm and Scott Adams met with the Anthony family in private and visited the Anthonys’ and gardens’ property, “ex parte proceedings that violated the gardens’ clearly established procedural due process rights.”
Malcolm, who is president of the Knickerbocker Group, a building and design company that has done significant work for local resident Paul Coulombe said Tuesday that he and Adams visited the gardens separately and that on his visit, he happened to run into Kevin Anthony, who lives on a road that abuts the gardens.
“I didn’t call the Anthonys to say, ‘Hey, let’s meet,’” he said. “I just went up to take a look. I took this very seriously. I’m a big supporter of the gardens. I’m very involved in economic development, and the gardens are a big driver of economic development. But this is a big deal relative to our water supply, and I wanted to understand the issue.”
Anthony showed him “some areas where the streams come down off the parking lot,” he said. “Of course, that blew up because the gardens found out I was there and thought I was doing something illegally.”
The visit was raised at the next board of appeals meeting and the entire board subsequently visited the area to “actually walk every inch of where I walked with Kevin,” he said.
“In my estimation, that undid any wrong that I supposedly did,” Malcolm said. “I’ve been on the appeals board for 16 years. I’ve never been told I could not do a ‘drive by.’ It’s a small town and it’s kind of silly, but it’s what the gardens have chosen to hang their hat on.”
Adams did not immediately return a phone call Tuesday.
The suit alleges the subsequent site visit by the full board “was insufficient to purge the taint of Mr. Malcolm and Mr. Adams’ ex parte proceedings with the Anthonys.”
A letter to the board demanded the two members recuse themselves, but the board instead allowed them to participate. The board voted 3-2 on Nov. 10 to rescind the gardens’ development permit,.
Malcolm and Adams subsequently voted against the expansion permit.
The suit asks the court to rule that the town endorsed the unconstitutional violations of the gardens’ due process rights by allowing its members, “tainted by unconstitutional acts,” to vote on the appeal, and to review and reverse the town’s revocation of the permit.
In a Dec. 8 letter to the town, Portland attorney Mary Costigan, who represented the gardens, wrote, “The hearings were deeply flawed procedurally. … One member was consistently intemperate, bullying and confrontational, even with the board’s own legal counsel.”
She wrote of procedural errors and inappropriate communications, and argued, “Legally, the board simply got it wrong.”
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