The Boothbay Region Water District and the Anthony family have appealed the Boothbay Planning Board’s decision to approve a building permit for Coastal Maine Botanical Gardens’ expansion project.

The Gardens received the board’s approval on Dec. 16 to begin phase one of a $30-plus million project. But the Anthonys and the Water District believe board members misinterpreted state and local ordinances.

The town has scheduled a board of appeals hearing for 6:30 p.m. on Feb. 28 in the former town hall located at Boothbay Railway Village. The Water District hired Portland attorney Bill Harwood of the Verrill Dana law firm. On Jan. 12, Harwood submitted the district’s appeal, which argues the permit must be overturned.

CMBG is located at 132 Botanical Gardens Drive, which is in a general residential district. CMBG is also in a watershed overlay zone. In the appeal, Harwood argues the proposed use is not allowed within the zone and the applicant failed to demonstrate that the project wouldn’t contaminate the water supply.

“The CMBG proposal must be rejected because of indisputable evidence (stormwater runoff) increasing phosphorus into the Knickerbocker Lake and adversely impacting (the region’s) water supply,” he  writes.

During the Dec. 15 planning board hearing, Harwood referenced an environmental consultant’s peer review of the Maine Department of Environmental Protection report on the expansion’s impact on the Knickerbocker Lake Watershed. FB (Forrest Bell) Environmental Project Manager Laura Diemer maintained that phosphorus runoff created by the expansion would be greater than the DEP reported. The consultant was hired by the town.

During the hearing, Gardens consultant Jan Wiegman, a Wright Pierce engineer, reported the DEP calculated expansion-created phosphorus runoff as being at an environmentally safe level. Wiegman later clarified the discrepancy between FB’s analysis and the DEP’s.

“She is not saying the DEP is wrong, only that she preferred a different system. The DEP established regulations for environmental law, and we followed them,” he said.

In the appeal, Harwood characterizes the planning board’s decision as not doing enough to protect the region’s water quality.

“The planning board inexplicably concluded the project will not degrade water quality based on nothing more than the DEP permit,” Harwood writes.

The district is also challenging CMBG’s assertion it’s an educational facility. Harwood argues the facility is a museum and is not allowed within the Watershed Overlay Zone. He also characterized the planning board as “misunderstanding the law of home rule” and not applying it toward protecting the watershed.

Kevin Anthony has been the expansion’s most vocal critic. He lives on Gaecklein Road near his parents’ farmhouse, which abuts the Gardens. He declined to specify the basis for his family’s appeal. But he agreed with several points included in the district’s appeal. He supported the district’s assertion the DEP used outdated methods in gauging phosphorus runoff and the planning board didn’t follow local ordinances regarding storm water runoff.

Before the Gardens received the board’s approval, Kevin Anthony appealed the DEP permit to the state Board of Appeals. Anthony is not optimistic the state board will view the appeal favorably.

“The state DEP and appeals board are all LePage appointees,” he said. “They’re not sympathetic to protecting the environment or water supply so they may not even take the time to hear our case.” On Feb. 7, Anthony said the DEP wouldn’t consider the FB Environmental peer review, which questioned the DEP’s methodology in gauging the phosphorus runoff.

Boothbay Code Enforcement Officer Art Dunlap has contacted the five appeals board members and two alternates. He received confirmation that at least five will attend the hearing. The only person who definitely won’t is Chairman Dick Perkins, according to Dunlap.

Another appeal is also on the board’s Feb. 28 agenda. Summer resident Mary Lou Teel is appealing the code enforcement officer’s violation notice she received last November. The November notice regards Teel allegedly clear-cutting a property adjacent to her Barters Island Road property. The CMBG accused her last spring of clear-cutting its property.

Teel is appealing Dunlap’s November ruling citing her for a land use violation. Teel, the town and the Gardens have been working out a repair and replace agreement hoping to avoid a court battle.

Dunlap expects Teel’s appeal will be tabled.

“We’re reviewing her plan now so the appeal is only to preserve her right to appeal if we don’t come to an agreement,” Dunlap said.

Teel claims she didn’t violate the town ordinance and had authority to maintain the view on the adjacent property. The Gardens filed a lawsuit against her in U.S. District Court in Portland. Teel filed a counter suit.

In court documents, the Gardens’ legal representatives allege “Mary Lou Teel wrongfully clear cut an ocean front swarth of the plantiff’s property and violated state and local laws in violation of the CMBG’s property rights.”

Also in court documents, Teel countered she had an easement allowing her to remove vegetation on the adjacent property. Teel purchased the property in 1985 from the Jackson family. She received a view easement from Jonathan Jackson. In the court documents, the CMBG challenged the legality of the easement.