Opposing lawyers debated the relevance of Boothbay’s comprehensive plan language Monday during the second appeals board hearing on the building permit for Coastal Maine Botanical Gardens’ expansion project.

Attorney Sarah McDaniel argued on behalf of her clients, the Anthony family, that the planning board erred in December in approving a building permit for the $30 million-plus project. McDaniel, a partner with the Westbrook law firm Douglas, McDaniel, and Campo, contended the error was not taking into account language in Boothbay’s comprehensive plan regarding land use regulations goals and objectives.

The comprehensive plan was approved by voters in 2015. The document’s land use regulations goals and objectives are located in Section 1.8. The section states new development’s scale and intensity should maintain Boothbay’s residential character. The expansion would double CMBG’s parking to over 900 spaces. That is “out of portion” to the neighborhood and shouldn’t be located in a residential zone, McDaniel argued.

“Zoning is established to protect neighbors and I believe the planning board erred by not looking at Section 1.8 in making their decision,” McDaniel said.

CMBG is represented by Mary Costigan of the Portland law firm Bernstein Shur. She said the planning board was told by its legal representative not to use Section 1.8 as a set standard in making a decision. Costigan argued the section should be used as a guide in writing ordinances, and not as a stand alone standard.

“You are not policy makers,” she said. “The voters are the legislative body who makes the rules and you (appeals board) are acting as the planning board ruling on whether the applicant is meeting the standards set in the town’s ordinance. You have no discretion and must rule as the ordinance is written.”

The two attorneys debated whether or not the expansion project which began in January met all the town’s environmental guidelines. McDaniels cited various reports where a third party representative for the Maine Department of Environmental Protection warned about erosion damage and stormwater  runoff  contaminating the Knickerbocker Lake Watershed. One incident resulted in the project being delayed for several days by the DEP following a May 26 report issued by the representative.

Costigan countered that CMBG has received all state and local permits including ones from the DEP and the Army Corps of Engineers and had worked closely with the third party representative and town code enforcement officer in correcting any problems associated with the expansion.

The CMBG applied for a building permit last November to build 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 for phase one which includes improving Gaecklin Road, expanding parking, building the visitor center, upgrading utilities and building a pedestrian bridge.

The Anthony family along with the Boothbay Region Water District appealed the planning board’s decision granting a building permit. Both parties expressed concerns about contamination of the region’s water supply located in the nearby Knickerbocker Lake Watershed. Vaughn and Joanne Anthony had other concerns. The couple has lived at their Gaecklin Road farmhouse since 1966. The family has been a vocal critic of the project since learning about it last year.

The Anthonys describe a Botanical Gardens expecting to draw 300,000 visitors per year as like living beside “Disneyland.” They expect current noise problems will only intensify with more traffic occurring year round. They also have concerns that erosion and stormwater runoff will contaminate their well water. The Anthonys also have filed an appeal regarding CMBG receiving a DEP permit for the project.

CMBG is seeking an expansion to meet an increasing number of visitors to the facility. Executive Director Bill Cullina has said the expansion will keep visits affordable for families and create a favorable visitors’ experience.

The second hearing lasted three hours and 35 minutes. Both attorneys made their opening statements followed by Costigan’s presentation supporting the Botanical Gardens’ case for meeting municipal and state regulations regarding the expansion. Following Costigan’s presentation, McDaniel questioned CMBG officials regarding the expansion. The hearing concluded with public comment.

A third hearing is scheduled for 6 p.m. Thursday, July 27 in the municipal building. It will begin with McDaniel’s presentation with evidence and testimony supporting her clients’ case for denying a building permit based on local and state regulations. Vaughn and Joanne Anthony and their sons, Kevin and Jason, are scheduled to testify.

Costigan will have an opportunity to question witnesses. Both attorneys will make rebuttal statements.The appeals board may deliberate if time allows. Each hearing is limited to four hours, unless the board decides to extend a session.