464WVN #372: Another Town Center decision under pressure
- Oct 5, 2010Dear Wayland Voter,
A Wayland commission has taken one more small step toward a permit for the long-delayed Town Center project.
And once again the selectmen and the town administrator have been working closely with an impatient but dilatory developer while making the situation difficult for the commission.
In the more than four years since the mixed-use development on Route 20 was proposed, the Board of Selectmen has tangled with or ignored the Road Commission, the Planning Board, the Conservation Commission and the Historic District Commission. In the latest action the selectmen paid for lawyers to represent the town but didn't share the information with the Waste Water Management District Commission.
Wastewater disposal for the Town Center hasn't attracted widespread public attention, but for the selectmen it has loomed in the background at least since June 2007, when they met with town counsel in executive session and acknowledged the possibility that the developer could sue the town over the issue. Town Center developer Twenty Wayland, LLC says it is entitled to 45,000 gallons per day of capacity as the result of a 1999 agreement. Letters from the Wayland's town administrator to the developer's lawyer in 2007 affirm the obligation to provide that capacity. In effect, Wayland can't provide capacity for other potential customers without accommodating Twenty Wayland.
The WWMDC was pressured late last month into signing off on a document allowing Twenty Wayland LLC to apply for a required state permit. The commission chairman wrangled with an ultimatum from the developer's project manager that the document be signed that night, and later stepped down from his leadership position after it became clear that his two colleagues would give in to Twenty Wayland.
The Massachusetts Department of Environmental Protection informed Twenty Wayland three years ago that it needed to apply for a sewer connection permit for its wastewater needs for the Town Center. The developer has been disputing state requirements and is only now seeking the permit, though it says it wants to break ground this year.
Town Center project manager Frank Dougherty played hardball when Commission Chairman Dave Schofield was reluctant to sign on Sept. 22, citing lack of information: Either the commission had to agree to sign the DEP permit application or the developer would not continue to negotiate a land swap required for locating the town's new wastewater treatment plant.
"It's a simple request," Dougherty said. "I am trying to work with the town. I need to get this into DEP. I need to get it going. Delaying it will definitely impact coordinating everything else on the treatment plant."
Schofield said, "We're taking action on very limited information." He argued for two more weeks to meet with their engineer and with the town administrator, who had not responded to Schofield's email seeking an explanation for what was happening.
Dougherty responded: "I was told not to attend the meeting on the 5th (of October) if this is not signed."
Schofield objected. "That appears like a bully tactic to me, Frank .we're talking two weeks as compared to years I don't support approving it tonight."
The chairman argued that "we could pull a trigger in some fashion that could weaken our position without knowing the full ramifications of the whole situation."
The selectmen have been paying for legal services from Foley Hoag to resolve wastewater plant issues, charging some of the fees to the wastewater commission and paying the rest from Town Center gift monies. On paper, it appears Foley Hoag's client is the WWMDC, but the commissioners have not been privy to the negotiations nor copied on communications Foley Hoag has sent to the selectmen and the developer's counsel.
The WWMDC had received nothing in writing from its attorney or engineers recommending this action step.
Commissioner Fred Knight said, "We've always had reservations about how much we've been included in the process. I think that we're in agreement on that issue, but I think at this point my main reservation, that we would have to alter our fee structure, has been put to bed -- that we would not alter our fee structure -- and this does, I think, forward the completion of the project, the Town Center. Now I'm in favor of approving it."
Dougherty insisted he was not going to negotiate the signing of the permit application and the land swap on Oct. 5: "It's not going to happen ..the concepts are not linked at all." Schofield said he was not trying to link them but rather still could not understand why it was so important to have the paperwork signed that night rather than in two weeks.
Dougherty responded, " the board told me that unless this thing gets signed, we're not going forward with all the other stuff because we've been strung along by the town, collectively, not you folks, for a long time."
Knight: "There are a couple of things that could go on more appropriately in the next two weeks before that meeting if this is approved. One is that the land swap could essentially be finalized..."
Schofield: "It feels like we're being strong-armed, that's what it feels like."
Knight: "That's our usual position, isn't it?"
Schofield: "No, in this case, I think it's pretty right in your face. To me, there is no reason ..Fred, what do you know about the negotiations with DEP to go along with this? I know nothing."
They referred to the letters attached to the DEP permit application and discovered that they were not copied on a letter from their own lawyer, Adam Kahn.
Schofield: "That's my point. Where's Adam's letter?... I don't know how I could be expected in good faith to make a decision based on your (Twenty Wayland's) attorney's interpretation of our attorney's letter, without seeing our attorney's letter...If you guys want to vote, I feel firmly that I will not change my mind..."
Knight moved to approve the application to DEP. Commissioner Shawn Fennelly seconded the motion. The motion passed, 2-1.
Schofield reminded the commission that several months ago he indicated it was long overdue to rotate the chairmanship to another member. The time had come, he said, because he could not see himself signing off on something he did not vote to support.
Schofield nominated Fred Knight to be the new WWMDC chairman. Commissioner Shawn Fennelly seconded the motion, and Knight was elected unanimously. With that, newly elected chairman Knight completed and signed Section F of the DEP permit application on behalf of the Commission.
The paperwork had been sent to the commissioners electronically before the meeting, but it was not until after Dougherty left the meeting that the commissioners noted how problematic some of Twenty Wayland's assumptions are - - affecting other plant customers, present and future.
Earlier in the evening, an individual hoping to lease retail space on Route 20 to open up a new bakery sought information from the commission about the sewer connection. The commissioners patiently explained how the allocation and billing work and spent the time responding to the baker's questions, encouraging the prospective new customer. It remains to be seen if Twenty Wayland will object to such a new plant user.
ISSUES GO BACK A LONG WAY
In public meetings and in the press, Wayland selectmen and Twenty Wayland often point to the Historic District Commission and the Conservation Commission for delays with the permitting process. Both commissions granted permits last year with conditions deemed necessary to comply with their responsibilities as commissions. Twenty Wayland filed lawsuits against both commissions. The developer still needs other permits in order to move the project forward, some from the town and others from the state.
In an April 10, 2009 letter to Twenty Wayland, DEP said it "has also informed Twenty Wayland on numerous occasions that due to capacity issues at the (existing) Wayland plant, as well as significant concerns about the age and condition of the plant, a permit approval was unlikely to be granted."
Twenty Wayland cites a contractual agreement with the WWMDC for 45,000 gallons per day (gpd) of discharge capacity. The 40B Wayland Commons condo project, under construction at the abutting property along Route 27, has a contractual agreement with the WWMDC for 7200 gpd. In order to discharge its wastewater to the town's plant, the condo developer needs easement access across Twenty Wayland property.
When the Town Center development was originally proposed, the developer and the selectmen assured the voters that a new treatment plant would cost no more than $3 million. But the town was asked to approve $5.2 million at the 2008 Annual Town Meeting to build a new plant. The 2009 Annual Town Meeting was asked to appropriate another $400,000. The Special Town Meeting that same spring approved a land swap whereby the Town Center developer would make it possible to build a new plant elsewhere on the former Raytheon property, not far from the current location. The town contracted engineering services (Tighe & Bond) to design the new plant, recently got DEP approval for the design, and then put the project out for bid but without the land swap agreement fully executed with Twenty Wayland.
Given the downturn in the economy and the departure of Town Center principals Dean Stratouly and Chuck Irving, the wastewater commissioners earlier this year were reluctant to authorize spending the appropriation to build a new plant, fearing its largest customer would not build its project or meet financial commitments. The commissioners have feared the smaller plant customers and the town could end up holding the bag.
So when Twenty Wayland showed up on Sept. 22, the developer was looking for the wastewater commissioners to sign off on Section F on its application to DEP for a sewer connection permit for 28,000 gpd, with the understanding that Twenty Wayland could apply for an additional 17,000 gpd in another year. DEP wants to see how much water use and wastewater flow the new Town Center project will actually generate before approving more capacity. Twenty Wayland said it was willing to apply for a smaller interim permit based on certain assumptions.
Schofield believes it would take one or two seasons of a fully built-out project before they would know actual flows to be able to support approving the remaining 17,000 gpd. "It does not make logical sense to me why someone would come to this meeting after having done this for years and getting this close to the finish line and say `You need to sign it tonight.' That in itself gives me pause."
Attached to the DEP application were two letters:
1) A Sept. 3 cover letter from Frank Dougherty to the WWMDC (copied to the Wayland town administrator and KGI Properties principals and attorneys) that began: "Pursuant to direction provided in our June 23, 2010 meeting with Town Administrator Fred Turkington and WWMDC counsel Adam Kahn, enclosed is Twenty Wayland's revised wastewater connection permit application for our Wayland Town Center project." From the second paragraph: "Our willingness to accept a smaller, interim permit is based on the assumptions set forth in the June 9, 2010 letter from our counsel...to your counsel."
2) A June 9 letter from the developer's attorney responding to Adam Kahn's June 2 draft outline of a settlement agreement. But missing from the paperwork was the original June 2 settlement proposal from Foley Hoag's Adam Kahn. The wastewater commissioners were not included in the meetings or discussions that resulted in the June 9 letter. The wastewater commissioners were not copied on their own counsel's legal advice.
Among the developer's assumptions represented in its attorney's June 9 letter were:
-- WWMDC shall issue all local permits/approvals for Twenty Wayland to discharge 28,000 gpd.
-- Twenty Wayland will not seek the additional 17,000 gpd before August 2011 and will not begin using it before December 15, 2011.
-- WWMDC to promptly issue a permit for the additional capacity upon receipt of a complete application from Twenty Wayland.
-- Once Twenty Wayland has all permits and approvals for the interim 28,000 gpd, it will grant easements to Wayland Commons to hook up to the town's plant for 1760 gpd (less than a quarter of its fully paid allocation).
-- WWMDC shall not issue any sewer connection permits to existing or new users, nor allow any existing users to increase its allocation until the Commission issues all permits/approvals for Twenty Wayland to discharge 45,000 gpd to the plant.
-- Twenty Wayland's attorney, engineering & other costs/expenses negotiating or obtaining permits/approvals from WWMDC or DEP will be offset against the developer's $3 million gift to the Town upon completion of the project.
The developer and the commission disagreed over whose sewer connection permit it is. The developer contends it has its rights to 45,000 gpd no matter what, and any DEP issues are the town's problem.
The town's new Economic Development Committee is focusing on ways to fill vacant business spaces to increase commercial tax revenue. New businesses could be discouraged, however, if Twenty Wayland insists nobody else can hook up to the wastewater plant or increase their allocation until the Town Center developer gets everything it wants.
2006 Town Meeting voters approving the mixed-use overlay district were led to believe there would be a $3 million gift from the town center developer. The first installment of that gift is being used to pay for attorneys, leaving less for project enhancements, e.g. sidewalks and town green amenities. Twenty Wayland now also wants the town to pay to pump its wastewater to a new plant, which according to the WWMDC is not the town's responsibility.
Voters were led to believe a new town facility would be located on the Town Center property. Designs for a possible new library/senior facility and associated parking (in and near the floodplain) were erased a few years ago from the developer's and marketing agents' site plans.
2006 Town Meeting voters were led to believe that 25 percent of the project's housing would be affordable. The selectmen sponsored a successful Town Meeting warrant article last year to reduce the affordables to 12 rental units, all located over retail. Senior staff and town officials originally estimated the project could generate up to $1 million per year in new tax revenue. Newer estimates are a fraction of that.
The Board of Selectmen has consistently supported the developer's requests for concessions and other changes to the deal. The development agreement between the selectmen and the developer was modified last year to add a new date-certain sunset clause.
Various unknowns remain about the plant, e.g. easements needed, installation of new pipes from the plant to discharge to a different river location, what may be found when the old plant is demolished and the new plant is being built, and who will pay costs not covered by approved plant funding.
-- WVN staff
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Michael Short, Editor