Despite a victory in their appeal regarding Coastal Maine Botanical Gardens’ expansion project, the Anthony family isn’t feeling too victorious based on the aftermath of the Nov. 9 decision. The appeals board voted 3-2 to deny a building permit for the project.

On Nov. 14, Boothbay began taking steps to enforce the decision. Town officials received a legal recommendation to issue CMBG a stop work order on the construction, alterations and repairs. But the order allows CMBG to use newly created parking spaces and a building possibly within an area the appeals board ruled as a prohibited location.

In a letter to The Boothbay Register, Jason Anthony criticized the town’s decision to adopt a stop work order instead of a notice of violation. He described the town’s actions as an order allowing the code enforcement officer to circumvent the appeals board by providing CMBG an “ad hoc permit” and said it violates his family’s due process under the law and is contrary to municipal ordinances.

“After 10 months of complex hearings, the Gardens lost their right to continue construction and their right to use the buildings and parking lots constructed while under appeal. And yet, on Nov. 17, the code enforcement officer issued a stop-work order which is in effect a permission slip for CMBG to keep working,” he wrote.

The order was drafted by town attorney Sally Daggett who advised the planning board during CMBG’s pursuit of a building permit. The permit request was filed in November 2016. Daggett consulted with appeals board attorney John Shumadine in formulating the order’s wording. The two lawyers advised Boothbay’s code enforcement office in how to proceed now that CMBG no longer had a valid permit.  

The order allows CMBG to use the completed parking lots within the watershed overlay zone (WOZ) for the duration of “Gardens Aglow” and immediately stop all uses aside from necessary maintenance of vegetation or preventing erosion and other factors causing environmental harm within the zone. The order also bars construction outside the WOZ until all necessary land use approvals are obtained from the town.

Under the order, CMBG is also allowed construction activity pursuant to three permits the planning board approved in December 2016. The permit allows continued construction on three parking lots, a visitor center and a road located outside the watershed overlay zone.

CMBG is required to apply for planning board approval 30 days within the stop work order before proceeding with construction outside the WOZ. CMBG must also prosecute such application to completion and assume all risk associated with continued construction activity in areas located outside the zone.

“We feel the stop work order has damaged the credibility of Boothbay’s civic institutions and is putting the town in considerable legal jeopardy,” Anthony said.

Boothbay CEO Art Dunlap disagrees. He issued the order based on advice from the town’s lawyers. “I had a conversation with Sally (Daggett) about the stop work order and I issued it to CMBG on Nov. 17. The order delivered is verbatim of what she sent me,” Dunlap said.

So far, CMBG has not submitted a new permit application for the expansion project, according to Dunlap. But CMBG has requested the appeals board reconsider its decision denying a permit. The appeals board will meet at 6 p.m. Tuesday, Dec. 12 to discuss reconsidering its decision.