Two lawsuits against Boothbay may be settled Wednesday night if selectmen approve a proposed consent decree. Selectmen will have a 6:15 p.m. executive session in the municipal building to discuss a proposed agreement worked out between their and Coastal Maine Botanical Gardens’ attorneys. A public hearing will follow during the 7 p.m. board meeting.

The consent decree would settle two lawsuits CMBG filed against the town in December. The Gardens filed one in Wiscasset Superior Court and the other in U.S. District Court in Portland.

In the federal case, CMBG claims the appeals board violated the Gardens’ 14th Amendment U.S. Constitutional rights to due process. In the Superior Court lawsuit, CMBG has claimed it was denied constitutional rights to due process and the board erroneously applied standards of use based on municipal land codes.

The two parties are still under a court imposed gag rule, but the consent decree is a public document, according Town Manager Dan Bryer.

Under the consent decree, CMBG would settle both lawsuits against the town. In return, CMBG would be allowed to complete all construction pursuant to the permit approved by the planning board in December 2016 and amended in April 2017. The town would allow all associated building permits and  use of all structures and facilities on the current property.

The Board of Appeals decision denying CMBG a permit on Nov.9 would be vacated. The decree would also require that further development beyond the December 2016 permit must comply with existing law. The decree would mandate that parking lots inside the watershed overlay zone be monitored for stormwater quality with a plan set forth in the agreement.

The stormwater monitoring plan would establish baseline testing for efficacy and performance of the parking lots’ stormwater treatment system. The plan would monitor removal of total phosphorus from stormwater discharge within the Knickerbocker Lake Watershed. The data collection will follow runoff from portions of CMBG’s site for quality and quantity parameters toward obtaining an understanding of the system’s design.

The decree would also settle whether a botanical garden is more like an “educational facility” or “museum.” The two parties agreed as long as CMBG operates as a botanical garden, the town “would treat it substantially similar and compatible with an educational facility.”

The agreement would also restrict further development within the watershed overlay zone. CMBG would agree not to seek further construction east of the 2016 Watershed Line. However, CMBG could construct pedestrian trails and walkways in accordance with limits set forth in applicable conservation easements prior to obtaining permits and approvals. The agreement requires CMBG to place a permanent conservation easement on approximately 75 acres of land within the watershed overlay zone.

Upon entry of the consent decree, the town’s code enforcement officer would rescind the Nov. 17, 2017  and Dec. 4, 2017 stop work orders.

If selectmen approve the consent decree, CMBG would dismiss all claims against the town with prejudice and without costs or attorneys’ fees to either party. The decree also has a clause regarding any potential legal action taken by a family against CMBG.

The Anthony family was named as an intervener in CMBG’s federal lawsuit against Boothbay. An intervener joins ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants.

In the consent decree, if CMBG and interveners don’t settle or resolve all causes of action arising from the 2016, 2017, and 2018 planning board and appeals board decisions or to the court’s approval of the consent decree, then CMBG  “shall defend, indemnify, and hold harmless the town, its officials, etc. against any and all claims, including monetary or attorney fees, arising thereunder until such a final resolution is reached or the town is absolved from any claims.”

The consent decree would supersede any prior agreements by or among CMBG or Boothbay officials. In the event of a dispute or alleged breach, the prevailing party is entitled to reasonable attorneys’ fees and other incurred costs.