Appeals board needs more time to decide CMBG permit

Proceedings delayed because members didn’t have several documents
Fri, 09/22/2017 - 2:15pm

    The appeals board hearing on Coastal Maine Botanical Gardens’ expansion permit came to a grinding halt Sept. 21 almost as soon as deliberations began. The hearing began with  lawyers discussing whether or not a Wolfeboro, New Hampshire civil lawsuit had any relevance to the permit. Next, opposing lawyers gave their closing arguments. And it appeared after four hearings and 12-plus hours of testimony, the appeals board was finally going to deliberate.

    That was until members began searching for several maps, charts and reports in their packets. This led to appeals board lawyer John Shumadine conferencing with opposing attorneys, CMBG’s Mary Costigan and the Anthony family’s attorney Sarah McDaniel, resulting in a mutual decision to delay deliberations. The lawyers will resubmit their materials which will be distributed back to board members next week.

    The delay adds another session to the hearing schedule. The board will resume deliberations at 6 p.m. Thursday, Oct. 4, when it will review testimony and proceed to voting on whether or not CMBG met all local and state regulations. Shumadine will take an informal straw poll as a basis for writing a formal opinion.

    The board will later officially vote at 6 p.m. Tuesday, Oct. 17.

    This was the fourth of four hearings originally scheduled to hear the Anthony family’s appeal of CMBG’s building permit. In December, CMBG received planning board approval for phase one of the $30 million expansion project. A fifth hearing was added last month to consider whether or not the civil lawsuit against Wright-Pierce, the Maine firm hired to develop and construct CMBG’s wastewater system for the expansion, was relevant.

    The fifth hearing began following up on a resident’s request at the previous one. Barters Island Road resident Paula Arsenault encouraged the board to review Wright-Pierce’s  culpability in engineering and constructing a municipal wastewater system for Wolfeboro. The Wolfeboro septic system was designed to support 600,000 gallons per day, but it began showing signs of failing about a month after being installed, according to U.S. District Court documents.

    The failure resulted in Wolfeboro suing Wright-Pierce who designed and constructed  the $1,050,000 wastewater system. On May 5, 2014, the jury awarded Wolfeboro $6,795,000, concluding Wright-Pierce violated New Hampshire’s Consumer Protection Act.

    Costigan contended the Wolfeboro case had no relevance in CMBG’s permit. “There’s really not a lot to talk about because the case was dismissed with prejudice after the two sides settled and we’re prevented by the settlement from discussing it,” she said.  Costigan said the two cases weren’t related. She stated the two septic systems were different in scale and a Wright-Pierce employee involved in the Wolfeboro case is no longer with the company.

    CMBG’s project manager is Wright-Pierce engineer Jan Wiegman. “They don’t argue his (Wiegman) credentials. They question the standards being used set by the DEP (Maine Department of Environmental Protection). Wright-Pierce has done hundreds, if not thousands of wastewater projects, and I have full faith in the standards used for this project.”

    Anthony family attorney Sarah McDaniel argued the Wolfeboro case was relevant. She reminded board members to weigh not only the evidence, but also judge the witnesses’ testimony. She also questioned the use of Wright-Pierce’s outdated standards for calculating allowable phosphorus run-off into the Knickerbocker Lake Watershed. Two independent reports, one commissioned by the town of Boothbay and other commissioned by the Boothbay Region Water District, challenged the methods used by the DEP as “being outdated.”

    “CMBG has received several notice of violations from the DEP.  The Forest Bell and Wegner-Kretchmer reports question the accuracy of the data. As board members, you must weigh the evidence and each party’s veracity. And the Wolfeboro case shows they misstated data which is a serious problem,” McDaniel said.

    Before suspending the hearing, members came to a consensus about one main point of the Anthonys’ appeal. The family contended CMBG’s designation as an educational facility was inaccurate because it was more like a museum. Boothbay’s land use codes prohibit museums in the Knickerbocker Lake Watershed Zone. Since the land use codes don’t identify or prohibit a botanical garden as an allowed use, the planning board, or in this case, appeals board must determine if a botanical garden is more like an educational facility, which is allowed, or a museum, which is not.

    Board members Dick Perkins, Steve Malcom, James Tonon and Jeanne Fuller supported treating CMBG as an educational facility. The four based their decision on the past 10 years of CMBG receiving various municipal building permits and a Superior Court ruling earlier this year describing  CMBG  “as more like an educational facility.”

    Member Scott Adams disagreed. He believed the municipal land use codes were clear about structures inside the watershed. “It says an educational facility is a school, and everybody agrees the Botanical Gardens are not a school.” He also said the parking lots being constructed in the watershed hadn’t been part of previous planning board decisions approving permits.

    Next, the board began reviewing municipal standards before realizing members didn’t have access to several materials relevant to the proceedings.