December 21, 2017

Botanical Gardens pursues lawsuit over rescinded $30M expansion permit

Courtesy / Coastal Maine Botanical Gardens
Courtesy / Coastal Maine Botanical Gardens
An architect's rendering shows what the entry way to the new visitor center at Coastal Maine Botanical Gardens in Boothbay would look like when completed. Designed by Steven Blatt Architects of Portland, this two- and three-story shingled building will provide three times the square footage of the current single-story visitor center.

Coastal Maine Botanical Gardens says a lawsuit is one option it will pursue after failing to persuade the Boothbay Appeals Board to reconsider the Nov. 9 decision to rescind the permit for a $30 million expansion that is already underway.

The Boothbay Register reported that CMBG's Director of Marketing and Communications Kris Folsom told the newspaper that the organization plans to file a lawsuit in Lincoln County Superior Court appealing the Boothbay board's decision. It also has submitted a new application to the town for its expansion project, which is scheduled to be considered by the Planning Board in January, the newspaper reported.

At issue is whether the Coastal Maine Botanical Gardens is a "museum," which would not be a permitted use, or an "education facility," which would be. Three members of the Boothbay Appeals Board stood by their Nov. 9 decision to rescind CMBG's permit, based on wording in its applications describing it as a "museum," the newspaper reported.

In a written statement provided to Mainebiz, Folsom outlined CMBG's case supporting its position that the Nov. 9 decision should have been reconsidered.

CMBG's statement makes these points:

"Expansion of a long-standing permitted use is easily supported: Last February, the Superior Court made this clear with its finding that a botanical garden, as a permitted use in the watershed, could be 'easily supported,' The majority of the board was wrong in stating the board had no choice but to rescind the permit."

"The board's decision is unsupported by a practical, common-sense read of the zoning ordinance": Instead of approving the permit, which the Superior Court had predicted would be a supportable outcome, the board stretched to find a use that was banned in the watershed. The result of that stretched effort is a finding that parking lots and an access drive for an existing botanical garden are somehow more impactful than they would be for an educational facility, lodging house, retirement facility, conference center, hotel/motel, professional and business offices, nursing home, laundromat, or a dog kennel. It is a conclusion with no legal or reasonable basis. This is a clear effort by certain members of the board to manipulate the interpretation of the ordinance in order to achieve a predetermined result: keep CMBG out of the watershed and prevent CMBG from meeting visitor demand through its expansion as a previously permitted use."

"The project meets all environmental standards: The board found that the project meets all 42 development standards in the zoning ordinance. Prohibiting the project based on the proposed use does not result in any protection for the watershed. In fact, the state-of-the-art stormwater management system in the new development is far superior to the prior gravel parking lots and access way in the watershed."

"Legally, the board simply got it wrong: The board committed legal error when it determined that an existing botanical garden located in the Watershed Overlay Zone is all of a sudden not a permitted use in that zone. Regrettably, the board's confusion and unwillingness to correct their mistakes has set in motion what could be years of expensive and divisive litigation over a flawed and unconstitutional action that is a clear violation of our civil right to due process."

CMBG's written statement also alleges that the board's hearing procedures were "fundamentally flawed" and asserts that concerns over water quality of the watershed were "baseless" and that the watershed will be "healthier with the project than without it."

In 10 years CMBG has become one of largest public gardens in the country, ranking among the top 10%. Its multi-year $30 million expansion includes a new visitor center and gift shop, a restaurant in the existing visitor center, a 16,000-square-foot horticulture research and production facility, a nearly six-story conservatory, expanded parking, formal gardens and trails.

Read more

Judge rules Coastal Maine Botanical Gardens can proceed with expansion

Boothbay appeals board halts $30M Coastal Maine Botanical Gardens' expansion


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