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Botanical Gardens v. Town of Boothbay

United States District Court, D. Maine

April 23, 2018

COASTAL MAINE BOTANICAL GARDENS, Plaintiff,
v.
TOWN OF BOOTHBAY, MAINE, Defendant, VAUGHN C. ANTHONY, et al., Intervenors.

          ORDER ON JOINT MOTION SEEKING APPROVAL OF CONSENT DECREE

          JON D. LEVY U.S. DISTRICT JUDGE.

         This case arises from a dispute between Plaintiff Coastal Maine Botanical Gardens (“Coastal Maine”) and Defendant Town of Boothbay (the “Town”) over the Town's Board of Appeals' decision to rescind a development permit which was previously granted to Coastal Maine by the Town's Planning Board. Coastal Maine and the Town have submitted a Joint Motion for Entry of a Consent Decree (ECF No. 29).

         I. BACKGROUND

         A. The Parties

         Coastal Maine filed its Complaint (ECF No. 1) against the Town in December 2017 asserting that the Town violated its procedural due process rights under the Fourteenth Amendment of the United States Constitution (Count I). The Complaint also seeks review of a governmental action pursuant to the judicial review process established by Maine Rule of Civil Procedure 80B (Count II); alleges a violation of Coastal Maine's procedural due process rights under the Maine Constitution (Count III); and requests a declaratory judgment (Count IV). The Town filed a responsive Motion to Dismiss (ECF No. 9) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that the Complaint's procedural due process allegations fail to state a claim upon which relief can be granted. The Motion to Dismiss seeks the dismissal of the federal due process claim and also urges the Court to decline to exercise supplemental jurisdiction over the Complaint's remaining state law claims. See ECF No. 9 at 1; see also 28 U.S.C.A. § 1367(c)(3) (2018).

         The Intervenors - Vaughn C. Anthony, Joanne A. Anthony, Kevin Anthony, and Jason C. Anthony (collectively, the “Anthonys”) - own property that abuts Coastal Maine's property. Their unopposed Motion to Intervene (ECF No. 15) was granted by an Order entered March 5, 2018 (ECF No. 18). On March 22, the Anthonys filed a cross-claim against the Town (ECF No. 24) which seeks relief pursuant to Maine Rule of Civil Procedure 80B, and a Motion to Dismiss the Complaint (ECF No. 25) in which they joined the arguments previously asserted by the Town in support of its Motion to Dismiss (ECF No. 9).

         The issues raised by the parties in this proceeding largely overlap with the issues raised by the same parties in a proceeding pending in the Lincoln County Superior Court, docket no. WISCSC-2018-AP-1. See ECF No. 9 at 11; ECF No. 15 at 2. The Superior Court action was ordered stayed pending resolution of this federal action. See ECF No. 15 at 2.

         B. Coastal Maine's Development Permit

         According to the Complaint, Coastal Maine operates a nationally recognized botanical garden. In an effort to accommodate a growing number of visitors, Coastal Maine sought to expand its permitted use of its property. Specifically, Coastal Maine sought the necessary permits to construct a new visitor center, a new entrance with a drop-off plaza and pedestrian bridge, and new visitor and staff parking lots, as well as to improve the existing entrance road. The Town's Planning Board unanimously approved Coastal Maine's development permit. With the permit in hand, Coastal Maine began construction in early 2017. The Anthonys appealed the Planning Board's permitting decision to the Town's Board of Appeals.

         The Board of Appeals initiated hearings on the appeal in February 2017. It then conducted a review process which included public fact-gathering hearings and the receipt of expert evidence. On September 21, 2017, the Board closed the evidentiary record and established a process for deliberations. On the same day, the Board of Appeals conducted a straw poll, which resulted in a 4-1 initial decision in favor of upholding the permit.

         Sometime after the September 21 meeting, two members of the Board of Appeals each conducted private tours of the development site and the Anthonys' property (hereinafter, the “ex parte site visits”), that were guided by the Anthonys. The ex parte site visits became known to the full Board of Appeals on October 4. In response, the Board as a whole sought to cure the potential prejudice of the ex parte site visits by conducting an on-the-record site visit on October 17. Also on October 17, during a meeting of the Board of Appeals, one of the members who had participated in an ex parte site visit stated that he intended to withdraw his support for the permit. During the same meeting, the other member who had participated in an ex parte site visit stated that he had routinely engaged in independent evidence gathering when ruling on matters before the Board of Appeals, and that he believed Board members were entitled to identify and rely upon information outside the record when ruling on matters before the Board.

         Coastal Maine submitted a letter to the Board dated November 7, which requested that the two members who engaged in ex parte site visits be recused from the final vote on the appeal, which was scheduled for November 9. At the November 9 meeting, the Board reviewed details of the ex parte site visits, and voted unanimously not to require the recusal of any of its members.

         The Board ultimately voted by a 3-to-2 margin to rescind Central Maine's permit. The Board's decision contained two parts. Part one of the decision, which was the basis for the Board's ultimate decision to rescind the permit, found that the proposed development was not a permitted use in the Watershed Overlay Zone. Part two of the decision found that Coastal Maine's development application met all of the remaining relevant development review criteria contained in the Boothbay Zoning Ordinance. Had the two members who participated in the ex parte site visits been recused, the remaining Board members' votes suggest that the Board would have upheld the permit by a vote of 2-to-1.

         C. The Proposed Consent Decree

         In March 2018, settlement negotiations yielded an agreement between Coastal Maine and the Town, which they now seek approval of through their Joint Motion for Entry of a Consent Decree (ECF No. 29). The proposed Consent Decree was approved by a vote of the Town's Board of Selectman in late March, see ECF No. 29 at 2, and if approved by the Court, the Decree will vacate the Board of Appeals' decision and authorize Coastal Maine to ‚Äúcomplete all construction pursuant to the Development Permit approved by the Boothbay Planning Board on December 15, 2016 and as amended April 19, 2017 and all associated building permits and, thereafter, to use all structures and facilities on its current property . . . in compliance with all applicable law, ordinances, regulations, licenses, permits and ...


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