The Boothbay Board of Appeals on Monday turned down a request by Coastal Maine Botanical Gardens to reconsider a Nov. 9 decision revoking a permit allowing the gardens to undertake a $30 million expansion.

The expansion, however, is well under way, and the gardens are in the midst of an annual holiday light show that is expected to draw 90,000 over the course of its run.

No motion was made to reconsider, Boothbay Code Enforcement Officer Art Dunlap said Tuesday, leaving the issue effectively dead.

A new application for development was finalized and submitted Tuesday and will be considered by the Boothbay Planning Board on Jan. 17, Dunlap said. Dunlap was still reading the application Tuesday and specific information was not immediately available.

In response to a request for comment Coastal Maine Botanical Gardens Marketing Director Kris Folsom forwarded to the BDN an advertisement slated to run Wednesday in the Bangor Daily News, in which the organization argues that the the board’s decision resulted from a “fundamentally flawed” hearing process and that “the incited hysteria was baseless.”

“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,” the ad states.

After nearly a year of arguing among attorneys, abutters and the Boothbay Regional Water District, the Board of Appeals voted 3-2 on Nov. 9 in favor of an appeal filed by Coastal Maine Botanical Gardens’ neighbors.

Jodie and Vaughan Anthony, their sons Jason and Kevin, and Paula Ragsdale, argued that the project, which is already under way, would further degrade the water quality of nearby Knickerbocker Lake, already listed by the state as “most at risk from new development.”

In December 2016, despite loud objections by neighbors and the Boothbay Region Water District, the town’s Planning Board approved the project, which will include a new visitor center and gift shop, a restaurant in the existing visitor center, a 16,000-square-foot horticulture research and production facility, and a nearly six-story conservatory, along with expanded parking, formal gardens and trails.

But to make that happen, large swaths of wetlands — including 6.2 acres of “critical terrestrial habitat of eight significant vernal pools” — have been permanently altered.

While the board agreed in November with Coastal Maine Botanical Gardens on all but one of the appeal’s points, it rescinded the permit when members voted in favor of the appellants’ argument that the botanical gardens had classified itself as a museum rather than an educational facility — a use that is not permitted in the watershed.

Following the Nov. 9 decision that brought to a halt any expansion work inside the Knickerbocker Lake watershed, Portland attorney Mary Costigan, representing Coastal Maine Botanical Gardens, wrote to the town that the board “made legal errors” when determining that a botanical garden is not a permitted use in the watershed overlay zone and that, “despite having met all development standards and being a permitted use outside the watershed overlay zone, that the entire development permit should be denied.”

In a Dec. 8 letter, she wrote, “The hearings were deeply flawed procedurally. … One member was consistently intemperate, bullying and confrontational, even with the board’s own legal counsel.” She wrote of procedural errors and inappropriate communications, and argued, “Legally, the board simply got it wrong.”

While the board’s decision allowed Coastal Maine Botanical Gardens to continue work on the project outside the Watershed Overlay Zone, Jason Anthony said his family believes the entire project should be halted until the organization proves the project without the portion now lacking a permit still meets town standards.

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