Anthony family prevails in appeals board hearing

Board votes 3-2 to deny CMBG a permit for its expansion
Posted:  Friday, November 10, 2017 - 4:30pm

In a 3-2 decision, the Boothbay Appeals Board denied a permit for Coastal Maine Botanical Gardens’ expansion. In December, CMBG received unanimous planning board approval to begin a $30-plus million expansion project. But its Gaecklein Road abutters appealed the decision. In February, Vaughn and Jodie Anthony along with their sons, Kevin and Jason,  challenged CMBG’s assertion it was an educational facility and the project complied with local and state ordinances regarding erosion controls and storm water runoff.

Ten months and eight hearings later, the appeals board ruled on Nov. 9 in favor of the family. The decision was primarily based on the facility not being an accepted use in the Knickerbocker Lake Watershed District. CMBG is in a special residential zone district within the Knickerbocker Lake Watershed. The municipal ordinance doesn’t list a botanical gardens as either an allowed or prohibited use. So the appeals board was charged with determining whether a botanical garden was more like an educational facility, which is an accepted use, or a museum, which is prohibited.

After three deliberation sessions, appeals board members Dick Perkins, Steve Malcom and Scott Adams ruled CMBG was “more like a museum.” Members James Tonon and Jeanne Fuller ruled CMBG as “more like an educational facility.”

Kevin Anthony, who along with his parents has a property abutting CMBG, wasn’t totally satisfied with the board’s decision. He liked the majority decision ruling it more like a museum, but he disagreed with other decisions regarding whether or not the project met local and state environmental standards.

He also thought the process – which began with several planning board hearings regarding CMBG’s application and continued with his family’s appeal – revealed problems with the town’s ordinances.

“This process revealed several large holes in our  ordinances. The issue isn’t, ‘This is happening in our backyard.’ It’s that it could happen in anybody’s backyard. People need to understand how important it is to pay attention to what’s going on and hopefully, this won’t happen to somebody else.”

In a statement issued Nov. 10, CMBG was pleased the board affirmed that the expansion complied with all standards set forth in the ordinances. But it was disappointed with the board’s ruling designating the facility as a museum after 10 years of operating in the watershed overlay zone.

“The action is at odds with rulings in Lincoln County Superior Court last February when it reviewed a planning board decision issuing a project permit. We are confident the same court will correct the board of appeals’ unfortunate error, but we regret the cost to the taxpayers and community at large that accumulates in the meantime,” wrote CMBG Director of Marketing Kris Folsom.

CMBG has not decided if it will appeal the board’s decision. Before CMBG decides, it is seeking a solution to resolve this issue. “It is not in the interest of any party to have this matter go on forever in an endless back and forth between courts and municipal administrative bodies,” wrote Folsom. “We believe the solution is clarifying what Board of Appeals members can and cannot do under the terms of the ordinance and applicable law, specifically with respect to the correct understanding how to categorize CMBG as an existing permitted facility.”

The appeals board’s decision will either put a permanent or temporary hold on CMBG’s expansion project. Boothbay Code Enforcement Officer Art Dunlap said phase one of the expansion is nearly complete. “I’m not sure what’s going to happen. I’m calling the town attorney Monday (Nov. 13) to see what to do,” he said.

Prior to the vote, the appeals board responded to a CMBG request to recuse two members for “not acting in a fair and unbiased manner in considering the application before them.” On Nov. 7, the appeals board received a letter from CMBG’s legal team with concerns about Scott Adams and Steve Malcom. CMBG complained the two had acted improperly by conducting a site review on their own and doing their own research.

Adams and Malcom have over several years’ experience as appeals board members. Board members Perkins, Tonon and Fuller all expressed disappointment for the two men’s actions. Tonon and Fuller also stated Adams and Malcom should have known a site visit without the full board present wasn’t allowed. But Perkins, Tonon and Fuller voted against recusing Adams and Malcom.

But Tonon believed the two members’ action may result in the board’s work being appealed in court. “This is going to be an issue in the next step. I’m sure it will go further and it probably should,” Tonon said.

Malcom apologized for his actions. But he said he didn’t knowingly do anything wrong. He has served on the board for 16 years and told his colleagues he didn't remember being told not to drive by a site. “I made a mistake and I own that. I’m accused of being in the pursuit of knowledge. I can’t ever remember being chastised for that.”

Adams assured his fellow board members he could make a fair decision and, like Malcom, didn’t recuse himself. He also characterized his actions on the board as “never taking anything at face value and when I come to a conclusion to stand by it.”

“This letter came three days before the vote. I think this is a way to remove two members who hold the same opinion. I think this is more of a tactical move than anything,” he said.

CMBG’s expansion is part of its  20-year master plan for accommodating a growth in visitors. In October 2016, CMBG applied for a permit to begin phase one of the expansion. CMBG’s application included plans for constructing a new visitors center, gift shop, horticultural center, conservancy and more gardens as part of its three-phase expansion project. The planning board approved a permit in December 2016 for phase one which includes improving Gaecklin Road, expanding parking, building the visitors center, upgrading utilities and building a pedestrian bridge.