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514WVN #405: Town Center developer threatens to sue town

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  • waylandvoters1
    May 24, 2011
      Dear Wayland Voter,

      A packed house showed up for a state hearing on the Town Center project developer's application for a wastewater connection permit. But the real action took place later, when the developer threatened to sue the town if it doesn't get its way.

      The 90-minute Department of Environmental Protection hearing on May 19, widely publicized by the selectmen, attracted many residents to the Town Building. Two senior DEP officials took testimony from about 20 people but, as intended, answered no questions and made no comments of their own. Some of those who spoke raised environmental issues, but the majority simply praised the mixed-use development and said it should be built.

      Contrary to rules laid down by the DEP, supporters of the project applauded when a resident faced the audience and said, "Let's get the things that we voted for." She and others with similar messages were speaking to officials who have no jurisdiction over nor official opinion about whether the project is built. The DEP's job is solely to see that environmental standards are met.

      Town Center supporters might well have directed their comments and frustrations to Twenty Wayland, which decides when it applies for local and state permits and makes new demands on the town. After the DEP hearing, the developer's lawyer delivered the threat of a lawsuit to a separate meeting of Wayland's Waste Water Management District Commission, which is building a new treatment plant to serve the Town Center and about 30 existing customers.

      There have been contentious delays since Town Meeting voters approved zoning in 2006 for a 370,000-square-foot development at the former Raytheon site on Route 20. The developer, Twenty Wayland, which has often resorted to threats and keeps lawyers busy, says it wants to break ground soon on the first phase of about 90,000 square feet.

      The DEP hearing, which was requested by residents who raised environmental concerns, was a sideshow compared with the developer's later confrontation with the wastewater commissioners. In addition to Town Center supporters, the hearing crowd included wastewater plant customers, attorneys, other residents, engineers, town officials, town staff, and at least one federal official. Despite written and spoken instructions from the DEP that only environmentally related comments were appropriate, most of the speakers made only general comments of support for the development. Those speakers included the chairmen of the Board of Selectmen and the Planning Board.

      Pertinent environmental testimony included: "green" recommendations for reusing treated water as a permit condition; Historical Commission concern that without access to site plans it can't be determined whether sewer construction would negatively affect historical artifacts; concerns about discharge impacts to the Sudbury River; the town's ability to meet DEP water conservation standards; concerns about volumes of water needed to service many proposed restaurants at peak times; overallocation of plant capacity and negative impacts on other plant customers; lack of a WWMDC agreement to carry costs of developer's wastewater infrastructure; no record of Twenty Wayland applying for or receiving a local sewer connection permit for the existing building or the proposed new project.

      Attorney Blames Town

      At the WWMDC meeting attorney Daniel Dain said Twenty Wayland will go to court unless the Commission comes up with a satisfactory solution to differences over charges and obligations. He referred to correspondence which he said commits the Commission to providing 45,000 gallons per day of discharge capacity and accused the Commission of backing away from a contractual obligation. He quarreled with the calculations the Commission used in making allocations to users. Finally, he said, under state law Twenty Wayland shouldn't be obligated to pay any fees at all until it is using the treatment plant.

      The attorney said agreements made the town as well as the Commission liable in a lawsuit. He said project delay was not because DEP decided to hold a public hearing (WayCam Video on Demand elapsed time 00:32:00) but rather the town's failure to meet its contractual obligations. He described stalled negotiations during the last year, including months waiting for town counsel to respond to letters.

      He suggested negotiating now and that the Commission meet in executive (closed) session to discuss a settlement to avoid litigation.

      Dain spoke from a text for more than 20 minutes, citing a memorandum of agreement and other correspondence. The attorney left copies of the cited documents for the commissioners, but despite requests failed to follow the accepted practice of providing a copy of his text.

      Among the documents Dain cited:

      1) (Elapsed time 00:26:00) Dain claims the 45,000 gallons per day capacity is a contractual obligation in a 1999 memorandum of agreement when the Town acquired the underutilized wastewater treatment plant. But that agreement was for the Wayland Business Center only. Dain claimed that commitment has been reaffirmed several times since then.

      2) (Elapsed time 00:27:40) Dain incorrectly stated that a March 28, 2006 agreement between the town and Twenty Wayland was affirmed by Town Meeting. The negotiated Development Agreement (including wastewater provisions) signed on March 28 by the selectmen appeared as an appendix in the back of the 2006 Town Meeting warrant for reference only. It was never voted by Town Meeting.

      3) (Elapsed time 00:29:00) Dain mentioned a June 28, 2007 meeting when selectmen, town counsel and the WWMDC reviewed the town's obligation to provide 45,000 gallons per day capacity. (In fact, that was a closed-door executive session during which yelling was audible to those waiting in the hallway.) Dain described the July 2, 2007 letter that Town Administrator Fred Turkington sent to Twenty Wayland documenting the June 28 voted commitment to provide that capacity to the Wayland Business Center and successor Twenty Wayland.

      When Dain was finished, Commission Chairman Fred Knight responded that the developer had presented a number of things worth discussing. When he asked Town Counsel Mark Lanza for advice, Lanza suggested saving any discussion of litigation for an executive session.

      The Commission followed up this week by scheduling an executive session at its next meeting on May 31.

      Further Complications

      Later in the May 19 meeting the three commissioners reviewed infrastructure site plans which it had just obtained from the DEP, not Twenty Wayland, the applicant. The issue involved the use, payment for and ownership of pumps to deliver sewage to the new treatment plant.

      For months Twenty Wayland has insisted that the WWMDC pay for and maintain a pump that will serve its purposes, and possibly those of other users because the new plant, whose location was designated by Twenty Wayland, is at a slightly higher elevation than the current plant. In the draft permit, the DEP included the town's ownership of that responsibility, as stated in the developer's November 2010 application. That is not the only cost the developer is pressing the town to take on.

      The plans were not received by the commissioners before the May 19 meeting. The lines were not drawn in color, as is usual, to designate what features belonged to Town Center and what belonged to WWMDC, and were not available in electronic form. This pattern of submission or non-submission and lack of clarity on such drawings is consistent with past practices by the applicant.

      For years Twenty Wayland has quarreled with town boards (except for the selectmen), walked out of negotiations and set its own timetable for applications. In addition to threatening litigation over wastewater fees, it is contesting its property tax assessment.

      At public comment, one resident observed that perhaps the shoe was on the other foot and Twenty Wayland should be told to pay its outstanding wastewater bill of about $50,000.

      Another resident expressed concern that the 45,000 gallons per day capacity claimed by the developer may not include the wastewater needs of a proposed municipal building site, which the library and Council on Aging have been studying for future relocation.

      Earlier this year frustrations led the commissioners to try to turn their responsibilities over to the Department of Public Works. April Town Meeting voters said no. The commission has not approved meeting minutes since last fall. This could prove problematic if it faces a lawsuit.

      The meeting concluded with the WWMDC voting to authorize its chairman to submit written comment as discussed to the DEP on behalf of the commission before the May 20, 5 p.m. deadline.

      Both May 19 meetings are available on WayCAM Video on Demand:
      Attorney Dain's comments begin about 22 minutes into the WWMDC meeting.

      -- WVN Staff

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      Wayland Voters Network
      Michael Short, Editor