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184WVN Newsletter #175: Voters will decide turf question

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  • waylandvoters1
    Jul 13 7:41 PM
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      Dear Wayland Voter,

      Wayland has experienced a turf battle in more than one sense.
      As with other recent questions, this one involved some
      testiness, several legal opinions, naked political power and
      questions about what happens when town boards and
      committees disagree. At least two selectmen seem to lean
      toward a more corporate style of governance. Michael Short
      reports.

      VOTERS TO DECIDE ON TURF FUNDS

      If you voted for the Community Preservation article adopted at
      Town Meeting in 2001, chances are you didn't imagine the
      money would be used to install artificial turf at the High School
      football field. But this fall you're likely to see that question before
      a special Town Meeting.

      As the selectmen at the time explained, the Massachusetts
      Community Preservation Act alllows communities to "voluntarily
      establish a fund to be used for (1) acquiring open space,
      including land for park and recreational uses, protection of public
      drinking water, well fields, aquifers, and wetlands, wildlife
      preserves, and other conservation areas; (2) acquiring and
      restoring historic buildings and sites; and (3) creating affordable
      housing."

      Earlier this year the Wayland Boosters sold at least two
      selectmen on the idea of spending $300,000 in Community
      Preservation Act funds to supplement $700,000 in anticipated
      private donations to resurface the field. But the issue couldn't get
      to a town vote without the approval of the seven-member
      Community Preservation Committee. After discussing four legal
      arguments on using the funds in this way, the committee voted
      5-2 Tuesday night to send the question to the voters.

      The meeting, like discussions over preceding weeks, was
      loaded with pressure from the Boosters and selectmen.

      Aside from potential environmental problems (discussed
      below), the idea of replacing several grass fields with a playing
      surface that can be used by more people more often for more
      sports would strike most people as eminently sensible. Athletes
      (and not just High School students) lose a lot of playing time to
      flooded and unusable fields. Overuse can make those
      fields dusty and uneven. Synthetic turf has been improved in
      recent years and is generally considered at least as safe as
      grass. And a low-maintenance field available virtually year-round
      could bring in more rental income from outside groups; the
      Boosters hope that would cover the cost of replacing the
      artificial surface in 10-14 years at a cost of $250,000-300,000.

      Furthermore, nearby towns are installing artificial turf,
      sometimes using CPA funds. If Lincoln-Sudbury has the latest
      turf technology, why not Wayland?

      The idea of resurfacing the field won't necessarily disappear
      even if voters reject the $300,000 from CPA taxes, Park and Rec
      Director Nancy McShea told the Community Preservation
      Committee. The School Committee controls the land and can
      accept private donations such as the Boosters'.

      The only possible obstacles involve environmental issues. With
      or without taxpayer funds, the Conservation Commission would
      have to approve the project because it is in a sensitive wetlands
      and well head area. Because of the proximity to town wells, the
      state Department of Environmental Protection could be involved.
      And because drainage from the new material would flow to the
      nearby Sudbury River through land owned by the U.S. Fish
      and Wildlife Service, that agency and the Environmental
      Protection Agency could be concerned.

      CPC members urged the Park and Rec Department and the
      Boosters to ensure that the public has enough information to
      make an informed decision, preferably with environmental
      issues settled before Town Meeting. But their major focus was
      on the law.

      Lawyers from the state Department of Revenue, which oversees
      CPA, told the CPC that laying a new surface over an existing
      field appeared to be maintenance and thus not permitted under
      the law. Hearing this, the selectmen ordered an opinion from
      Town Counsel Mark Lanza which concluded that the use was
      legal.

      When the CPC expressed skepticism, saying that Lanza hadn't
      addressed the issues raised by the state's lawyers, the
      selectmen hired the Boston law firm Kopelman & Paige for
      another opinion buttressing Lanza's. Finally, the CPC received
      an unsolicited opinion from George Harris, a lawyer and
      multi-term former Wayland selectman, questioning the two
      pro-spending opinions.

      Selectmen Bill Whitney and Michael Tichnor were clearly put out
      at CPC Chairman Michael Patterson's reluctance to agree
      immediately with Lanza and Kopelman & Paige. At the regular
      Board of Selectmen meeting the night before the CPC decision,
      they held up Patterson's reappointment and attacked Patterson's
      view of the law. (In the past two weeks the selectmen have
      routinely reappointed other board and committee members who
      wished to continue and showed up for an interview. One who
      wasn't interviewed was also
      eappointed.)

      THE DECISION

      Nobody was expecting a relaxed Tuesday night CPC meeting.
      While Whitney looked on from a doorway, Lanza and Tichnor
      played a prominent role in the CPC meeting, as did Craig
      Foreman of the Boosters, who had previously described
      Patterson and another CPC member as arrogant and had
      ridiculed two former selectmen who were involved in the 2001
      CPA article and who attended a previous selectmen's meeting
      concerning the turf project.

      CPC members expressed fear of being sued if CPA funds were
      approved. A suit in Newton seeks to halt a similar project. And
      Acton-Boxboro recently modified its plan to be more confident of
      conforming with the law.

      As Katie Liesener points out in a detailed article in the July 13
      Wayland Town Crier, Sudbury's experience will not clarify the law
      for Wayland. The chairman of the Sudbury CPC says that, like
      Acton, Sudbury had to acquire a legal interest to the property
      from regional school districts to satisfy the law. Because the
      land is no longer controlled by a school district, the town has in
      effect acquired new land and thus can create something new
      with CPA money. The article also quotes an official of the
      Community Preservation Coalition as saying that "there are as
      many interpretations as there are lawyers."

      Tichnor told the CPC that it has the legal opinion of two lawyers
      who represent the town and "represent this committee." (The
      last part is not necessarily true. The Kopelman & Paige opinion,
      for example, is addressed to the client, the Board of Selectmen.
      As Harris pointed out in his opinion, it would be a conflict of
      interest had the law firm claimed to represent the CPC.)

      When CPC members pressed Lanza to explain his reasoning,
      he noted that the new field could be considered as "created"
      under the law partly because the present grass is "destroyed" by
      constant use. The Kopelman & Paige opinion asserted that
      continued use of the grass would render the field unusable.

      If the town is challenged in court, one member asked, do we
      have a defensible position? Yes, Lanza replied, but no
      guarantee.

      Ultimately only Patterson and Larry Stabile voted no.

      THE POLITICS

      Now look back to the end of the previous night's Board of
      Selectmen meeting. Patterson's CPC colleagues had supported
      his reappointment, and selectmen traditionally consult other
      committee members before making a decision.

      Selectman Doug Leard moved for Patterson's reappointment.
      Whitney said he would second the motion for the purpose of
      discussion. Then Whitney and Tichnor aired very similar
      arguments.

      Tichnor said he was "very troubled" by Patterson's responses to
      the question of legality. Tichnor was particularly upset that
      Patterson evidently gave some consideration to the unsolicited
      legal opinion from George Harris, whom Tichnor described as a
      constant critic of the present board.

      In Tichnor's view, the two opinions the selectmen solicited from
      the town counsel and Kopelman & Paige were enough to dispel
      any doubts. Town counsel Mark Lanza represents all town
      boards and committees except the School Committee, Tichnor
      said.

      Whitney supported Tichnor's view, saying that any corporation,
      whether private or municipal, should have only one legal
      department, for "accountability and liability." He referred
      indirectly but negatively to an earlier example of another town
      body seeking its own legal advice. That presumably refers to the
      Planning Board's action during the long, sometimes
      acrimonious process of creating zoning allowing the town
      center project.

      In the private sector, Tichnor said, you pay for legal advice and
      then you follow it.

      Leard strongly defended Patterson and his long record of service
      to the town. "I feel very comfortable about Michael," he said,
      adding that his support isn't based on a decision about one
      grant. Furthermore, the legal issue at hand "is not black and
      white," he said.

      "It IS black and white," Tichnor shot back. Leard disagreed.

      When it became clear that there was serious disagreement, Joe
      Nolan, the new selectmen chairman, said he wasn't prepared to
      make a decision. Like Whitney and Tichnor, he said he was
      aware of Patterson's high repute but didn't really know him.
      Leard then withdrew his motion. When the board next meets on
      July 24, Selectman Alan Reiss, who was not at the meeting, is
      expected to to be back.

      With the CPA funding headed to the voters, will the selectmen
      reappoint Patterson, who after all has only one of seven votes in
      any future decisions? Or will they choose someone more to
      Whitney and Tichnor's liking?

      Tichnor and Whitney's attitude points toward a model of Wayland
      government as a hierarchy with a strong executive board at the
      top. The law gives the selectmen a lot of power, and not just in
      appointing the Finance Committee and dozens of other
      volunteers. The selectmen approve spending for legal
      representation, for example. In the past, though, many made the
      assumption that Wayland boards and committees are valued for
      expertise and a certain degree of independence. Power is
      distributed. Boards and committees may disagree, but they work
      out their differences in a professional manner. That doesn't
      seem to be the way things work now.

      To put this in context, it's worth noting that the Handbook for
      Massachusetts Selectmen published by the Massachusetts
      Municipal Association states that a board of selectmen, though
      the principal elected board, serves as a "titular chief executive,
      within a very limited frame of reference."

      "...other boards, including the school committee, the planning
      board and the board of health, may wield at least as much
      authority over certain aspects of town government," the
      Handbook continues. Furthermore, "the legal authority of
      selectmen is limited to actions taken by the board as a whole."

      "Town government in New England is largely government by
      committee," the Handbook says. "This structure, so different
      from what most people have experienced in their professional or
      social lives, is often a difficult adjustment for the new
      selectman." It recommends leading by "example, not by words,
      raw power, or manipulation."

      THE COMMITTEE

      Under the 2001 article the selectmen appointed two members to
      the preservation committee; the other five were appointed by the
      Conservation Commission, Historical Commission, Planning
      Board, Park and Recreation Commission and Housing Authority.

      Wayland has raised about $4 million in CPA funds. The CPA
      says it has never denied an application. An example: the
      Historical Commission reported to the selectmen this week how
      an $85,000 grant of CPA funds was used to restore historic
      gravestones in the town cemeteries.

      Though the committee's mission statement and procedures are
      readily available information, in earlier questioning of Patterson
      and another committee member, Whitney and Tichnor talked
      about wanting to understand the committee's "philosophy."
      Whitney wondered why the CPC shouldn't behave like a
      foundation and seek out groups to support.

      Patterson explained that a major mandate is to have funds
      available to take advantage of opportunities to buy expensive
      parcels of open space when they become available. He noted
      that an important parcel near the intersection of Rice Road and
      Old Connecticut Path will be free of restrictions soon. (In 2004
      Newton was able to save a small farm because it had $2.35
      million in CPA funds in reserve.)

      THE ENVIRONMENTAL QUESTIONS

      The Conservation Commission faces an important and perhaps
      demanding challenge if it decides to meet the CPC's desire to
      say yes or no to the project before the voters decide on the CPA
      funds.

      Though this kind of artificial turf is in wide use and some test
      data are available, the High School location concerns
      environmentalists. It is near the Sudbury River, federally
      protected to some extent by its designation as a wild and scenic
      river. Much more important, it is close to wells that supply a
      large percentage of the town's water. One widely quoted study
      shows toxic leachates from such artificial turf fields for months
      after installation (Birkholtz, Belton and Guidotti, 2003).

      Wayland's water system is under stress. Residents frequently
      complain about its color, taste and chlorine content. There have
      been problems with fecal coliform and the effect of the ph level
      on pipes. New private wells may worsen problems.

      High School parking lots and bus parking already create the
      potential for runoff of contaminants. Whether more impermeable
      surface at the football field and the increased traffic caused by
      additional users of the field increases the hazard, and by how
      much, is among the questions the CPC wants studied and
      resolved.

      The Department of Environmental Protection has jurisdiction
      over land extending from the wells into the parking lots. For
      further information on this, and specifically the safety of
      Wayland's water, see
      www.mass.gov/dep/waterdrinking/neroreps.htm.

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