184WVN Newsletter #175: Voters will decide turf question
- Jul 13, 2006Dear 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
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
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
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
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
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
Ultimately only Patterson and Larry Stabile voted no.
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
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
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
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."
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
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
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
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Wayland Voters Network
Michael Short, Editor