Boothbay receives CMBG lawsuit notification

Selectmen discuss lawsuit during Jan. 10 executive session
Posted:  Friday, January 12, 2018 - 3:15pm

Nearly three weeks after Coastal Maine Botanical Gardens filed a lawsuit in U.S. District Court, the defendant, the town of Boothbay, received notification on Jan. 9. The next day, selectmen held an executive session with municipal attorney Sally Daggett of the Jensen, Baird, Gardner, & Henry law firm.

CMBG filed the suit Dec. 21, four days after the Boothbay Appeals Board voted 3-2 denying, and ultimately revoking, a permit for phase one of the $30-plus million expansion. The lawsuit claims Boothbay violated CMBG’s Maine and U.S. Constitutional rights of due process and the appeals board’s action was “wrongfully biased, in clear error, and unsupported by evidence in the record.”

CMBG received planning board approval in December 2016 to begin phase one of its expansion plan. According to CMBG’s suit, it sought to expand existing permitted use within Knickerbocker Lake Watershed. The expansion includes additional infrastructure design for accommodating a growing number of visitors. But in February, the Anthony family appealed the board’s decision. Vaughn and Jody Anthony’s Gaecklin Road home is the Gardens’ largest abutter.

On Nov. 9, the appeals board ruled in favor of the Anthonys.  CMBG requested the board reconsider its decision, which led to another hearing. On Dec. 17, the board voted against reconsideration.

The appeals board’s decision hinged on two major factors. One was whether or not the proposal met all state and local environmental standards. The second was whether or not a botanical gardens was an approved use in the watershed overlay zone. The board voted CMBG’s application met 42 of 43 conditions. The only condition not met was whether or not a botanical garden was an approved use in the watershed overlay zone.

The municipal land use table doesn’t specifically state whether or not a botanical gardens is an allowed use in the zone. This required board members to decide whether a botanical gardens is more like an “educational facility” which is approved, or a “museum,” which isn’t. In a Sept. 21 straw vote,  four of five board members supported characterizing a botanical gardens as an educational facility.

A subsequent Oct. 4 straw vote had a different result. Board members Steve Malcom and Dick Perkins changed their minds and supported describing a botanical gardens as “more like a museum,” which doomed the permit.

CMBG claims actions by two members resulted in denying its 14th Amendment Constitutional rights to due process. After the board began deliberations, Malcom and Scott Adams inspected the expansion site on their own. CMBG  lawyers claimed their actions were unethical and prevented them from challenging any evidence gathered in the unauthorized inspection.

The lawsuit also alleges Adams demonstrated “bias and pre-established intent necessary to block Gardens development.” During the Sept. 21 straw vote, Adams was the only member who characterized the botanical gardens as being “more like” a museum, which is not an allowed use.

CMBG sent a letter to the board requesting the two recuse themselves, but neither Adams or Malcom did. Later, a second CMBG request asking the board  to remove Adams and Malcom was denied. “Had the two members been recused, the vote would’ve been 2-1 denying the appeal and upholding the permit. The appeals board endorsed an unconstitutional ex parte communication allowing two members to vote which allowed the tainted proceeding to continue,” according to the lawsuit.

CMBG also challenged the appeals board ruling, in the lawsuit, that it must classify a botanical gardens as “more like a museum.” CMBG pointed to a Lincoln County Superior Court judge’s ruling last February. The Boothbay Region Water District had sought a restraining order halting construction while CMBG’s permit was under appeal.

Justice Dan Billings denied the temporary restraining order. In his decision, Billings rejected BRWD’s argument framing a botanical gardens as either an educational facility or museum. According to the lawsuit, “Billings concluded, if the appeals board should apply that standard there was ample evidence showing the Gardens was more like an educational facility.”

In the lawsuit, CMBG provides six examples of how it qualifies as an educational facility.  In 2011, the Borsarge Family Education Center was built. The Gardens offers adult classes, workshops, youth groups, and field trips. CMBG offers a two-year certificate in Native Plant Horticulture and Botanical Illustration. The Gardens offers a pilot program (Lunder New Naturalist) which serves about 1,000 middle school students from 19 schools. CMBG collaborates with Boothbay Region YMCA, Boothbay Region Land Trust, University of Maine, and Maine Cooperative Extension Office. The Gardens also has a $240,000 annual budget for educational programming and staff.

The town is required to serve an answer to the plaintiff’s (CMBG) attorney, but so far, the defendant hasn’t responded. “Yes, we’ve received notification, but there really isn’t a whole lot to say. We had an executive session and we will move on with our attorney’s advice.”

In the lawsuit, CMBG is requesting a judgement declaring Boothbay denied its due process rights by endorsing the ex parte visit to the expansion site, reversing the appeals board vote showing it acted with bias and erroneously applied ordinances by ignoring evidence supporting it as a permitted use, and awarding the plaintiff with court costs, attorney fees and other such relief the court deems just and proper.

On Dec. 27, CMBG declined to comment about the lawsuit. “We don’t have any further comment other than what’s in the lawsuit,” wrote Marketing Director Kris Folsom in an email.

No court date has been set.