The legal battle over Coastal Maine Botanical Gardens’ proposed $30 million expansion has deepened.
One month after CMBG filed suit in U.S. District Court, objecting to a decision by the Boothbay Board of Appeals to overturn the permit allowing part of the expansion, neighbors of the gardens filed suit against the town — this time in superior court — seeking damages for what they claim was a faulty appeals process.
But the Anthony family, whose properties border the botanical gardens, object to “alternative findings” reached by the Board of Appeals in case the decision to stop the expansion is overturned in court, and they say the town’s codes enforcement officer has failed to enforce the board’s denial of the building permit.
Jodie and Vaughan Anthony and their sons, Jason and Kevin, whose Gacklein Road properties abut 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, construction on the gardens began in early 2017. But in November 2017, the Board of Appeals granted the appeal, and prohibited any portion of the project from being built in the watershed overlay zone.
The board continued to make “alternative fact findings” in case its ruling was overturned in court, according to a complaint filed by Westbrook attorney Sarah A. McDaniel, who represents the Anthonys.
The board concluded that if the project included a use allowed in the zone, the application would satisfy the ordinance.
Two days after the Board of Appeals upheld its decision to revoke the CMBG permit, attorneys for the gardens filed suit in U.S. District Court charging the town with violating the Civil Rights Act.
The lawyers allege the town of Boothbay violated the CMBG’s 14th amendment rights to due process of law. Citing bias and violation of due process, they asked the court to reverse the Board of Appeals’ decision.
They allege that two board members met with the Anthony family in private and visited the site, “ex parte proceedings that violated CMBG’s clearly established procedural due process rights,” Mary Costigan, attorney for the gardens, wrote in the complaint.
The Anthonys object that CMBG has not stopped construction in the areas outside the watershed overlay zone, and that use parking lots built in that zone continued throughout the gardens’ holiday light exhibit.
The Anthonys’ suit asks the court to uphold the Board of Appeals decision and vacate the “alternative findings.”
According to the complaint, the Anthonys are already suffering loss of “peaceable enjoyment of their property” from noise and light in the parking lots. It argues that if the court overturns the Board of Appeals’ findings, the family will “suffer particularized injury” due to loss of fair market value of their home, risk to water quality and other losses.
“All along we’ve been trying to do one thing,” Jason Anthony wrote in an email to the Bangor Daily News on Monday. “We’re trying to convince CMBG to move their expansion project out of the Knickerbocker watershed. That’s it. CMBG’s parking lots pose a real threat to the lake and to my parents’ well.”
He said the family believes that CMBG should be able to find another location for the parking lots than in the watershed overlay zone.
“The bad news is that because CMBG has become such an aggressive developer and neighbor, this is now a complicated legal battle,” he wrote. “They made a terrible mistake in deciding to build their parking lots even though their permit was under appeal. That was a gamble, and they lost. Now they’re fighting tooth and nail, despite the harm they’re inflicting on the town, to protect the mistake.”
Citing pending litigation, Jason Lorrain, codes enforcement officer for the town of Boothbay, declined to comment on Monday.
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