by Frank Schroth

Tuesday night’s lengthy meeting of the Conservation Commission was characterized by disagreement between attorneys regarding authority. After all was said and done, the commission voted to deny the application as it pertains to local wetland bylaws.

There was a fundamental disagreement regarding the commission’s authority regarding specifically what they are charged with ruling on. Marilyn Newman, the attorney for the applicant, citing language from the Board of Selectmen, said the Board of Appeals would be “walking in the shoes” of the commission regarding the local bylaws and that the commission did not have the authority to deny the permit under Chapter 40B. In their 40B application, the applicant has asked for a waiver from local environmental bylaws and their attorney maintained that the commission has no authority to rule on the local bylaws because Chapter 40B law put all approvals before the Board of Appeals. John Kiernan, Chair of the Conservation Commission, said that the waiver had not yet been granted and therefore the commission did have the authority and responsibility to rule on the local law. “We can’t ignore the law. If they haven’t issued a waiver, they are not in our shoes yet.” he said. He repreatedly asked the applicant’s attorney what the issue and consequences would be if they were denied the application. “If denied, can’t you resubmit?” he asked. Attorney Newman repeatedly responded by saying that the commission is  tasked with ruling on the state requirements. This was further complicated by a statement from attorney John Whitten, who is representing an abutter, that the ruling is for the site not the building’s purpose. He stated that the commission is to rule on the potential impact to wetlands; whether that there will be a commercial structure or a 40B development isn’t really the issue.

The concern of the commission was the encroachment of the development on an “area of non-disturbance.” Member Michael Blute argued that the project was unbuildable for that reason, and the commission agreed. They agreed to “bifurcate the decision.” They voted unanimously to deny the application, because it does not comply with the local wetlands bylaw, and they voted to defer a decision regarding with complience with Department of Environmental Protection (state wetlands) regulations. The votes were unanimous with one recusal.

The Conservation Commission granted a continuance to both Carrick Realty and the town of Milton regarding their respective demolition applications of the Hendries building. This will be continued on February 10th. In addition, there was a continuance regarding Carrick’s application for site development for Hendries property until March 10th. That date may change given members’ schedules.

At last night’s Board of Selectmen’s meeting, the board voted to extend the deadline for demolition again. It is now pushed out to February 6th. Keohane asked if it shouldn’t be pushed out longer given that the Conservation Commission will not hear the demolition  permit applications from either the town or Carrick until 2/10. The legal language to extend the date had already been drafted, and it was acknowledged that the date could be reset accordingly when more information is known. Chair Conlon said that the Buiding Inspector has been doing quite a bit of work behind the scenes in terms of coordinating with the MBTA and working with the demolition contractor.

Lastly, Carrick asked for and received a continuance from the Board of Appeals regarding their 40B application at their meeting on January 15th. At issue is the engineering plan for storm water management. The initial proposal would have tied the project into the existing town infrastructure. However, testing of pipes and current drainage uncovered two problems: 1) there is a constriction in the pipes that could impede flow, and 2) there is one drainage pipe that could not be definitively tracked. Carrick is going to re-engineer a solution modeled after the engineering done for the recent development on Milton Hill.

At the 1/15 session, Town Meeting Member Peter Mullin spoke and reiterated concerns regarding the density of the project and the resulting impacts of traffic and parking. He asked whether they had been dealt with and resolved. He also asked if people could continue to be heard on the issue. Chair of the hearing Brian Hurley said that it would be pre-emptive for the board to discuss parking or traffic in advance of deliberations,  which will take place after all testimony and evidence are received, and the hearing is closed. He also said, “We welcome any and all persons who want to say anything about this application.” The hearing will be continued to March 3rd.