Dissatisfied with the Nov. 9 board of appeals decision, the Anthony family is seeking vindication in Maine Superior Court. The family appealed the board’s ‘alternative finding’ in its challenge to Coastal Maine Botanical Gardens’ expansion project. In court documents submitted Dec. 21 in Wiscasset, the family claims it is “aggrieved by their alternative finding because the development doesn’t satisfy all ordinance standards.”

Last month, it seemed, the board had sided with the family. The BOA voted 4-1 denying CMBG a permit for its nearly completed expansion project. The board interpreted town land use codes as not permitting a botanical gardens within the Knickerbocker Lake Watershed Overlay Zone. The board also rendered an alternative finding affirming that CMBG had met all other local and state ordinances.

But that decision left nobody satisfied, resulting in each party filing separate lawsuits. On Dec. 20, CMBG filed suit in U.S. District Court claiming Boothbay had denied its constitutional right to due process in revoking its permit. A day later, Vaughn and Joanne Anthony along with their sons V. Kevin and Jason submitted their lawsuit.

In court papers, the Anthonys called the BOA’s alternative finding and conclusion “arbitrary and capricious, legally, erroneous and unsupported by competent evidence in the record.”

The Anthonys have opposed CMBG’s $30-plus million expansion project for nearly two years. Vaughn and Joanne Anthony live at 117 Gaecklein Road and are CMBG’s largest abuttor. Kevin Anthony is also an abuttor and lives at 93 Gaecklein Road. Jason Anthony lives in Bristol.

But the entire family has been the expansion project’s largest and most vocal critic. In November 2016, CMBG applied for a permit for phase one of its planned expansion. The project called for building a new visitors center, Gaecklein Road improvements, expanding parking, upgrading utilities and building a pedestrian bridge. In December 2016, the planning board unanimously approved a permit. Afterwards, the Anthonys and Boothbay Region Water District submitted appeals. In January, CMBG began its expansion project and by November it was nearly completed.

The BRWD dropped its appeal after CMBG amended its septic plan by moving a leach field out of the watershed overlay zone. In February 2017, BRWD requested a temporary restraining order against CMBG’s expansion project. The district wanted a halt to construction until all appeals were heard. The request was denied.

Since the appeals board hearings started in March, it’s mainly been the Anthonys challenging the expansion with a municipal appeal, and now, in the courts. The Anthonys’ opposition comes from a desire to protect both their and the town’s best interest, according to Jason Anthony. The family has characterized CMBG’s proposed growth of receiving over 300,000 visitors per year as “living beside Disneyland.”

The property is in a special residential zone. In court papers, the family cited concerns about losing peaceable enjoyment of their property, diminished property values, and endangerment to their and the region’s drinking supply.

The family has urged both CMBG and municipal leaders and boards to move CMBG’s expansion out of the watershed overlay zone. “We are forced to protect our win at the BOA because of CMBG’s aggressive response to their loss, the board’s errors in assessing whether CMBG met development standards, and (the) town’s attorney advising (the) code enforcement officer to allow CMBG to continue work even though their permit was denied. We had no choice,” wrote Jason Anthony in an email.

The Anthonys’ suit asks the court to uphold a determination by the Boothbay Board of Appeals that CMBG’s proposed use is impermissible in the watershed overlay zone. The suit also seeks to vacate the BOA’s alternative finding that CMBG satisfied ordinance substantive standards, and in the event, “the use categorization” is not upheld, to remand the case back to the BOA. 

In the federal lawsuit, CMBG is requesting a judgement that declares Boothbay denied its due process rights by endorsing the ex parte visit to the expansion site by two appeals board members, reverses the board’s vote, shows the board acted with bias and erroneously applied ordinances by ignoring evidence supporting it as a permitted use, and awards CMBG its court costs and 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.

Boothbay selectmen will hold an executive session at 8 a.m. Monday in the municipal building to discuss both lawsuits with its attorney. No court date has been set for either case.