This week the planning board finalized its special permit for the land clearing at 16 Hounds Ditch Lane but neither the entire board nor the homeowners came away satisfied with the decision.

The planning board voted unanimously to approve the special permit, however, they disagreed on some issues, which were the same ones the property owners attorney called “unacceptable.”

The special permit from the planning board was required after town officials discovered that Stephen Lilienthal of 16 Hounds Ditch Lane had committed a bylaw violation when he cleared more than 30,000 square feet of trees on his property in February.

According to planning board minutes from the August 27 public hearing on the special permit, Lilienthal cut down the trees because they were damaged in a winter storm. In March, Zoning Enforcement Officer Scott Lambiase issued a cease and desist order after hearing multiple complaints from residents about the tree clearing.

Since August, the planning board and its consultant, Horsley and Witten of Sandwich, have been working with Lilienthal to replant the cleared land. According to the August minutes, Lilienthal had planted 120 eight to ten foot tall Norway spruces and another 70 plantings, including maple trees.

The planning board’s consultant recommended additional plantings both inside and outside the Lilienthal’s brown plastic fence on Tremont Street to enhance the scenic views from the road and to screen the view from abutting properties. The consultant also called for mulching outside the fence and asked that access holes for travelling wildlife be cut into the fence.

At the continued public hearing Monday, Lilienthal’s landscaper,  Steven Tomasi, said more trees and shrubs have been planted in different areas of the property, in an attempt to meet the consultant’s recommendations. Tomasi said 18 more trees were planted and thirty holly and ink berry shrubs were installed along the Tremont Street side. Also, he said mulch will be installed outside the fence for erosion control.

Planning board members liked the improvements on the property.

“Outside the fence, along the guardrail, there’s been a significant change for the better,” said vice chairman Brian Glennon.

“I think we’ve come a long way,” said member Josh Cutler.

However, there were two issues in the special permit to which Lilienthal’s attorney Paul Driscoll objected and on which the entire planning board did not agree: requiring animal holes in the fence and the conditions in the special permit that required the homeowner maintain the landscaping “in perpetuity.”

The board’s consultant, Jane Estey of Horsley and Witten, recommended eight by ten inch wildlife access holes in the fence, spaced 75-feet apart. She said her company had recommended these fence holes on other projects.

Driscoll said the planning board had no jurisdiction over the fence and he said there was no evidence that there were ever wildlife corridors on the property that would require the fence holes. He said the Lilienthals did not think the holes were “necessary.”

Some board members said that if the planning board had no jurisdiction over the fence, then it shouldn’t require the holes. Others felt that the holes were a small concession the Lilienthal’s could make.

Glennon said that if the holes prevented “someone from slamming into a fox in the road…then to have a couple of holes wasn’t asking too much.”

He added that the applicants did not like this condition, they could appeal.

“So be it,” he added.

Driscoll said the Lilienthals would agree to a few holes if it were “a deal breaker.”

The planning board voted to require three wildlife fence holes.

Driscoll also objected to the conditions that required maintaining the landscaping in a “healthy condition in perpetuity.”

“When you use perpetuity in its literal sense, it means one thousand years from now,” he said. “These (conditions) essentially restrict the use of the land. It is beyond the intent and the purpose of the bylaw and beyond the jurisdiction of the planning board.”

Glennon said that the conditions were in place to make sure the repairs to the land would be continued to their conclusion and then kept in place over the years as the trees and shrubs grew to maturity.

“We have worked hard to have something take root here, both literally and figuratively and we need to see it get to where it needs to be,” he said.

Some board members favored requiring the landscaping to last five years while others thought 30 years was the proper amount of time.

“Thirty years is arbitrary. Five years is not arbitrary,” said Cutler. “The point (of the conditions) was to rectify this and mitigate it for the neighbors and the community and in five years we will have achieved that.”

The planning board voted 3 to 2 in favor of requiring that the landscaping last 30 years and then unanimously voted to approve the special permit and close the public hearing.

Driscoll said that the Lilienthals “could not accept such a restriction,” but he did not elaborate when reached after the meeting.