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370WVN #316: Selectmen and Developer v. Town Commission

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  • waylandvoters1
    Oct 19, 2009
      Dear Wayland Voter,

      Recent court documents depict the Board of Selectmen working closely with the Town Center developer to stop the Historic District Commission from exercising its statutory authority.

      Also in this newsletter:

      -- Selectmen discourage public discussion of Town Center concessions to the developer.

      -- The Finance Committee makes small adjustments in estimates of what it would cost to build a new high school.


      The selectmen have never made a secret of their unswerving support of Twenty Wayland's plan for the commercial/residential Town Center project. They have been impatient with other town boards while responding sympathetically to developer complaints, tantrums, walkouts and demands for concessions.

      Some selectmen have hinted broadly that if they had the power to issue building permits the developer would now have them.

      Now a lawsuit by the developer against the Historic District Commission has disclosed the Board of Selectmen's persistent and sometimes hidden efforts, working with Twenty Wayland, to stop the Commission from exercising statutory authority over road changes deemed necessary for the Route 20 development.

      The latest wrinkle: With the support of the selectmen's hand-picked town administrator, and using an argument that may strike some as Catch 22, Twenty Wayland is trying to prevent the Commission from defending itself in court.

      The matter is important because, though the Commission says it supports the development, it opposes any road widening in the district that isn't warranted by Town Center traffic. With the project now described by one selectman as on life support, it isn't clear how much, if any, of the 372,500-square-foot plan will be built, or when. To the Commission the ultimate horror would be destroying historic assets for the sake of a supermarket, the only known potential tenant.

      Documents filed in Middlesex Superior Court delineate key roles played since 2008 by the Board, town administrator and town counsel to support Twenty Wayland and thwart the Commission.

      In a nutshell, the legal argument against the Commission is this: The Commission lacks authority to stop road changes. Furthermore, only the town administrator can appoint a lawyer to defend you against that argument, and he won't appoint one. Therefore you lose the case by default for having no defense.

      This may not surprise citizens who recall earlier occasions when the selectmen asserted that a municipal corporation and a private corporation are identical in speaking with one legal voice. This overlooks the fact that Wayland government is not a hierarchy but incorporates checks and balances like state and federal government, and by law empowers independent boards, committees and commissions.

      In a court affidavit dated Sept. 18, 2009 Town Administrator Fred Turkington asserts that only he has authority to appoint counsel, subject to selectmen approval, and that he will not appoint counsel to represent the Commission nor allow any member of the Commission to represent it. Earlier, he had assigned Town Counsel Mark Lanza to represent the Commission.

      Lanza's involvement began at least as early as January 2008, when Turkington assigned him to write an opinion on the Commission's jurisdiction. The Commission was unaware of this until Turkington sent Commission Chair Gretchen Schuler a copy of Lanza's resulting memo of Jan. 29, 2008, which asserts the authority of the selectmen, acting as road commissioners, to make decisions and limit the Commission to aesthetic concerns.

      "Thereafter," Schuler says, "there were both back-room and public meetings between the Board of Selectmen and/or its representatives concerning roadway modifications and other contemplated changes in the Historic Districts, all of this during a time when there were no applications pending before any board in Wayland."

      When the Commission asked for independent counsel, Turkington refused, saying that only a "conflict of interest by town counsel" or lack of expertise in a particular legal area would justify the appointment.

      In the past Turkington has described the concept of independent counsel in situations like this as "absurd" and "opinion-shopping." Reminders: an opinion of town counsel is a legal assertion, not a fact. And Lanza and Turkington are employed by and report to the Board of Selectmen.

      Twenty Wayland didn't apply for the required Commission certificate until last January. On July 5, 2009 the Commission issued a Certificate of Hardship, which would allow the changes to the Historic District only if justified by the real prospect of traffic increases.

      That decision triggered Twenty Wayland's suit, which echoed Lanza's legal theory and was served on Schuler on Aug. 11, 2009. Since then the Board of Selectmen has met several times in executive (closed) session to discuss the suit, but never included the Commission.

      In addition to questioning the Commission's authority, the suit argues that the Commission's certificate contains legal errors and that its actions "are an abuse of discretion, arbitrary, capricious or lack substantial and/or reliable supporting evidence."

      With an impending deadline of Sept. 8 for responding to the suit, Schuler says, Turkington delayed when she again asked for independent counsel. Schuler's court affidavit says that Turkington ultimately responded on Friday, Sept. 4 that at his direction Lanza was assigned and had already offered settlement terms to Twenty Wayland's lawyers.

      Schuler says that when she was able to reach Lanza later that day, he replied that he couldn't represent the Commission because of a conflict of interest. By that time Lanza had been involved with the jurisdiction question on behalf of the selectmen for about 20 months.

      The Commission responded to the suit on Sept. 8 after Barbara Hayes Buell, a lawyer who lives in Wayland, agreed to take the case pro bono. Buell argues that the Commission has an inherent right to defend itself and must be allowed to carry out its statutory responsibilities and defend its decision.

      Buell described Twenty Wayland's legal maneuverings as "disingenuous."

      "Attorney Lanza informed the Commission at the eleventh hour that he had a conflict of interest and could not represent the Commission," she wrote to the court. "The Commission was thus left with no recourse but to seek the assistance of its own attorney, pro bono, to file an answer or risk being defaulted...

      "...Upholding Mr. Turkington's decision to not appoint legal counsel is tantamount to giving the town administrator the ability to nullify the decision of any board or commission with which he disagrees."

      Buell asked the court for a hearing on the plaintiff's motion to disqualify the Commission's counsel and declare a default. No date has been announced.

      Schuler's affidavit asserts details of the selectmen's involvement with Twenty Wayland.

      "On Dec. 18, 2008," she says, "I learned that Plaintiff had requested the selectmen to certify virtually all elements of Plaintiff's project within the Historic District as exempt from Commission review and Plaintiff provided language to the selectmen for inclusion in a letter to be sent to the Commission."

      Schuler says she asked to see a copy of the letter and was told a draft wouldn't be available until Dec. 31. Later, she says, she learned that a draft of the letter "allegedly prepared by Mr. Lanza" was distributed at a Board of Selectmen's meeting on Dec. 22."

      At the State of the Town Meeting on Sept. 30 a resident asked if a lawyer had been appointed to defend the Commission. Selectman Michael Tichnor replied that Lanza had been assigned. Either Tichnor didn 't know the facts or he disclosed less than he knew.

      -- Michael Short


      The Board of Selectmen seems reluctant to have an open discussion on new terms being proposed for the Town Center Development Agreement, saying comments can be heard during the Nov. 9 Town Meeting warrant hearing. However, at the Oct. 13 Selectmen's meeting, Town Administrator Frederic Turkington remarked that there can be comments but the business terms are set.

      This decision to forego public discussion prior to decision-making is all the more troubling after the revelation that two key documents required by the existing 2006 Development Agreement had never been filed at the Registry of Deeds or the Land Registration Office. At least one of the documents should have been filed in the chain of title more than three years ago so as to obligate successors to Twenty Wayland, LLC and others to abide by the terms of the Development Agreement.

      At a Special Town Meeting in 2006, voters were assured that the obligations undertaken in the Development Agreement would "run with the land" and be binding on any future owners or others who came into possession of the land. But, since the exhibits were never filed, the town has been at risk all of this time.


      The proposed new terms of the Development Agreement not only postpone most financial payments to the town until well after a Phase II is built but, for the first time, specify a near-term 2014 expiration date for the Agreement. The Planning Board's Master Special Permit, however, allows construction of the residential portion of the Town Center Project to begin as late as 2020.

      Should the Agreement expire before construction begins (or if a smaller development is built), the Town or the users could be at financial risk for the new Wastewater Treatment Plant, among other things. It is likely the town will not receive the previously contemplated tax benefits or the "gifts" for a very long time, if ever.

      Numerous citizens have weighed in asking Selectmen to proceed with caution and have an open, public discussion of the changes being proposed to the Agreement. Those residents have asked for an opportunity to ask questions and get answers before the Selectmen sign on the dotted line so that further downside risk to taxpayers can be avoided. Selectmen received emails from residents concerned that adequate due diligence and public review occur before the selectmen vote and sign an amended agreement. The Town Meeting warrant goes to the printer this week, and selectmen plan to include the new agreement as a warrant appendix.

      After some debate and persistence by Selectman Tom Fay, 15 minutes of public comment with selectmen about proposed changes to the development agreement were scheduled for Monday, Oct, 19 at 8:15 p.m.

      -- Molly Upton


      The Finance Committee has fine-tuned its tax impact estimates of the proposed new high school, based on subtracting an already appropriated $1.084 million. Here is what was printed in WVN Newsletter #315 dated Oct. 6, 2009 with the recent changes in parentheses. The revised FinCom estimates discussed at meetings this past week will be posted on the town's website.

      Keep in mind that the estimates depend on projecting interest rates, which are unpredictable.

      If the debt exclusion override ballot question is approved by voters at the polls in a special election on Nov. 17 and the next night at the fall Special Town Meeting, during Fiscal 2011 and 2012 the average cost per $100,000 of assessed home value would be $46. The most costly year would be FY 2013, when the impact would be $106 (now $102) per $100,000 of home value.

      But looking at the full five years following the full bond issuance, FY 2013-2017, the impact would be $102 (now $98) per year. Using these assumptions, the average annual cost for 25 years would be $74 per $100,000 of value. The FinCom estimates the median home valued at $650,000 would average $484 (now $483) per year for 25 years.

      The model assumes the Town borrows $10 million in FY 2011, $20 million in FY 2012, and $15.8 (now $15.15) million in FY 2013 (totaling $45.15 million.). The total cost to taxpayers for the project for the full length of the debt is estimated to be slightly under $70 million (principal and interest), assuming the state comes through with its pay-as-you-go contribution of up to $25 million.

      All the above assumes interest rates remaining at 3.5 percent. Interest rates are currently at historic lows, but many economists believe that rates will rise substantially as the economy recovers from the "Great Recession". The Finance Committee will provide some estimates of other interest rates in the warrant booklet that will be mailed to all households in early November. All of the above is also subject to the yet unknown financial outcome of the bidding process.

      The FY 10 tax rate is $16.37 per $1,000 of assessed value. The Community Preservation Assessment (CPA) surcharge of 1.5 percent on property tax bills is not included above.

      -- WVN Staff
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      Wayland Voters Network
      Michael Short, Editor