Commentary by Frank Schroth

Netflix has “Orange Is the New Black.” Milton has “Thayer Is the New Hendries.” With the Planning Board, the hits just keep coming.

Like Hendries, this application, which is for a special permit to re-introduce a landscaping line of business to Thayer Nursery, is becoming a serial program of epic length. Also like Hendries, the narrative is a bit hard to follow. Each session looks and sounds like the previous one. 

Last week, there were back-to-back episodes, quite a treat. On March 25th, we learned that the application was coming back for a second season. Why? Because solar panels fell off the roof of town hall.

The Planning Board had to abruptly cancel their previously scheduled hearing on Thayer due to safety concerns brought about by falling solar panels. That cancellation terminated the hearing. So when they met on the 25th, it was a new hearing and all the testimony etc. was pretty much gone. This was problematic. Is it also a new application? When a hearing on an application ends (as it did in this case with the falling solar panels), and the board fails to take a vote, then the application is accepted by default. After some discussion, it was determined that it is not a new application but a revised application – just the hearing is new.

Mr. Dunn found this confusing, “It’s very difficult to follow, at least for me, what is being proposed and how Thayer proposes to meet all the requirements [of the bylaw]. There have been 5 hearings with 5 submissions and it is difficult to follow.” (Town Meeting passed the bylaw at 2014 Annual Town Meeting.)

At the session on the 25th, Mr. Dunn also introduced an issue which he felt was significant: who is applying for the permit and are they legally allowed to do so? The application listed two different applicants on different pages of the application. They are Thayer Nursery Corporation and Margaret and Josh Oldfield. There are three legal entities involved. In addition to Thayer and Ms. and Mr. Oldfield, there is the Oldfield LLC. There are a rash of issues around which legal entity was granted what permits, who can transfer or assign the permits going forward, and who is actually operating the permits. This discussion carried over into the 26th and became the latest version of the Planning Board playing “Who’s on first, what’s on second.” Mr. Corcoran, attorney for Thayer Nursery and Maggie and Josh Oldfield, at one point suggested that Thayer Corp and Maggie and Josh were co-applicants. Chair Whiteside said the applicants were Maggie and Josh who were “doing something” on the site. Mr. Dunn’s head may have been spinning:

[Let’s] spin this out to its logical conclusion .  .  . Thayer Nursery Corp was not operating Thayer Nursery on the property in 2012? That is bending realms of reality here.

And on it went.

Which is why Thayer is the new Hendries. It goes on and on without really going anywhere. More than part of this may be due to a lack of defined process. Concerns and issues are raised at a given session, but the next session, rather than picking up on those issues, begins with another presentation that does not tie directly back to the specific concerns raised in the previous.

Before the previous hearing was cancelled, Mr. Dunn and Mr. Prondak, the Building Inspector, went through fairly lengthy reviews of the application as it related to the bylaw and raised issues point by point. While that testimony is water under the bridge at this point, the letters that summarize those issues have been resubmitted. You can find Mr. Prondak’s letter here. Mr Dunn outlined his issues in a memorandum also which can be found here.

Either of those could serve as a punch list of items to direct a response from Mr. Corcoran. But that hasn’t happened, (though Mr. Whiteside did say that there will be a thorough review of the bylaw items “a” through “s,” which identify requirements. Note you can find the article on the town warrant here.) Similarly, during the Hendries hearing, a matrix was developed highlighting deficiencies in the application; however, it did not serve as a blueprint for managing the process.

It is clear from Mr. Corcoran’s presentations that Thayer (or the Oldfields) are prepared (or already have begun) to invest substantially to rectify the issues of noise, odor and drainage that have plagued abutters. Whether those will address the requirements of the bylaw and be adequately enforced is not clear.

The first issue is a lack of commonly understood issues to be addressed. As Mr. Dunn noted, “the goal posts keep moving for anyone opposed to this permit.” The second issue is why the board is hearing an application that is potentially incomplete in the first place. Wouldn’t it be a better process to have the application vetted by the Town Planner’s office before moving before the Planning Board for a hearing? The last issue has to do with the amount of discretion built into the bylaw. It is rife with words like “reasonable.” As Prondak made clear, “reasonable” is a tough standard to enforce. He notes that regardless of any ruling he makes regarding infractions, the issue winds up in court. According to Prondak, there are currently 5 separate superior court cases pending regarding Thayer.

That is not good for the town, and that is one reason this issue matters. Thayer’s ability to unload firewood and mulch etc. may not be a burning issue for the majority of residents, but the outcomes and the precedents they set and the consequences they trigger should. Hendries was denied a permit, and now it is well on the way to becoming a 40B. An open space permit for 13 acres on Hillside was denied, and it will be a) a cluster development of condominiums b) a church or c) another 40B.

These may have been the right decisions to make, but the manner in which they were made and the process they followed might help defray some of the unintended consequences and optimally steer toward overall better outcomes for the town. Tightening the bylaws and tightening the procedures might help.