by Frank Schroth

In a 4-2 vote Milton’s Conservation Commission denied a site development permit for the Hendries property last Tuesday night. The principal reason for denying the permit was a failure to satisfy the Commission’s desire for open space.

The 131 Eliot Street LLC team and the commission had differing ideas of open space. The developer’s engineer defined it as any pervious surface. Chair Kiernan said it was any space without a building. Regardless of which definition was used, the developer maintained that the amount of open space would be greater than what exists with the current structure. The commission’s objection was with the configuration of the space. Kiernan wanted to take a look at the design contemplated for a mixed use building which has the Eliot / Central Ave corner opened up. Steve Connelly, a principal of 131 Eliot St LLC, was disinclined to do that. He wanted the commission to focus on the permit for the proposed design. Both became a bit frustrated with Kiernan saying, “We have interests we are trying to protect. I am stumped as to why we can’t join forces. I don’t think this is a good plan.” Connelly said, “It can’t happen the way you want it to happen.”

Peter Freeman, attorney for 131 Eliot LLC, questioned what the legal basis for rejecting the plan based on the open space issue. Kiernan believes there is.

The Conservation Commission is charged with ensuring developments comply with the Wetlands Protection Act and the town’s wetland bylaw. 131 Eliot St LLC received a waiver regarding the latter in the granting of their comprehensive permit from the Board of Appeals. At one point Kiernan said one permit was granted when it should have been two. He was referring to the outstanding enforcement order issued when the black oak on the property was taken down without permission. He did questioned the granting of a comprehensive permit while an enforcement order was pending saying, “I did not think you could issue a permit if [there was an issue] with another board. We have an enforcement order.”

The commission took up the issue of the enforcement order which has been pending for a number of years. Kiernan noted that they typically request a 3:1 remediation (i.e. 3″ inches of replacement for every 1″ ) However, the tree taken down was considered exceptional. Arthur Doyle recommended 6 trees be planted at locations to be determined. 5 would have a 6″ caliper and one a 12″ caliper. After additional discussion they made a motion for 2 red oaks, 3 hackberry trees and one black cherry. The motion passed unanimously.

Moving onto the Notice of Intent and permit they made a motion and voted 4-2. John Kiernan, Craig McNaught, Judith Darrell-Kemp, and Michael Blutt voting against. Arthur Doyle and Ingrid Beattie voting for.

The vote is likely to complicate negotiations between the Selectmen and 131 Eliot Street LLC. Katie Conlon spoke in support of the permit at this session. She has been leading a discussions with the Connellys on the possibility of returning to a mixed use development. Regardless, the Commisson’s decision is likely to be appealed.

Kiernan had stated earlier in the session that if the permit was denied that “we still remain willing and able to support the [alternative] plan.”