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WVN Newsletter #192: Lawsuit over turf

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  • waylandvoters1
    Dear Wayland Voter, Wayland taxpayers have filed suit to prevent the use of preservation funds for artificial turf. Also in this newsletter: reminders about
    Message 1 of 1 , Nov 16, 2006
      Dear Wayland Voter,

      Wayland taxpayers have filed suit to prevent the use of
      preservation funds for artificial turf. Also in this newsletter:
      reminders about meetings and an update by Molly Upton on the
      complex and sometimes contentious process of building the
      town center project.


      Thirteen Wayland residents have filed suit to overturn the Nov. 9
      Town Meeting vote to use community preservation funds for
      synthetic turf at the high school football field.

      The action filed Nov. 14 in Middlesex Superior Court against the
      town, the Community Preservation Committee and the School
      Committee argues that the Community Preservation Act
      prohibits that use.

      Vigorous debate preceded the lopsided special Town Meeting
      vote to allocate up to $300,000 in Community Preservation Act
      funds. Some opponents cited environmental concerns and
      others maintained that the proposed use was inconsistent with
      the intention of the 2001 adoption of the Community Preservation
      Act. Others aired part of the legal argument that has now gone
      to court.

      "The act is a new law that allows towns to raise and dedicate
      funds for open space acquisitions, affordable housing, and
      historic preservation," the Finance Committee explained in
      opposing the the 2001 measure. The current FinCom endorsed
      the Nov. 9 article.

      The Wayland project would use CPA funds -- derived from a
      property tax surcharge -- to augment about $700,000 in private

      The suit argues that replacing grass with artificial turf fails to
      meet CPA standards because it doesn't acquire, create or
      preserve open space or recreational land. The state Department
      of Revenue responded to a Wayland Community Preservation
      Committee query earlier this year with a a legal opinion that the
      proposal appeared to be improper because it represented
      maintenance rather than preservation.

      The state opinion and two others were countered with favorable
      opinions from Wayland's town counsel and the Boston firm
      Kopelman & Paige. The latter argued that CPA funds are
      permissible because the existing grass surface would be
      destroyed by continued use.

      The suit challenges that interpretation, saying that the land
      remains whether the surface is grass or a mixture of ground-up
      truck tires and sand.

      "Destroying the grass isn't destroying the land," said George
      Harris, a Wayland lawyer and former selectman representing the

      Another suit challenging the use of CPA funds was filed by
      Newton taxpayers on May 18 and is now in the discovery phase.
      The Newton proposal would improve two existing parks with
      paving, basketball and tennis courts, swings and other

      -- Michael Short


      Thursday Nov. 16, 7 p.m. Conservation Commission. The
      commission is expected to take up the application to install
      artificial turf at the high school after 9:20 p.m. Town Building.

      Thursday Nov. 16, 7:30 p.m., High School Building Committee.
      Town Building.

      Monday Nov. 20, 7 p.m. The School Committee will hold a public
      forum on current and long-range plans including the high school
      building project, the new math curriculum and replacing
      administrators. Town Building.


      The proposed redevelopment of the former Raytheon property
      passed another milepost when the full Planning Board
      unanimously approved the concept plan 5-0 on Nov. 8, and
      published accompanying rules and regulations.

      This has been somewhat overshadowed by complaints from the
      developers to the selectmen on Nov. 6 and 13 and requests
      made to the selectmen and the Planning Board on Nov. 13.

      Dean Stratouly of Twenty Wayland LLC again expressed his
      concerns that an application for the Master Special Permit might
      fail on the basis of "attendance, attenuation, or content" and
      significantly delay the project. He had hinted earlier that he
      might abandon the project if he failed to receive certain

      The Planning Board agreed to draft for town counsel's review a
      statement that it is the board's practice to allow a developer to
      withdraw its application without prejudice, and to continue a
      hearing if the developer so requests because an impaneled
      Planning Board member is absent, and that the board does not
      anticipate a change in these practices at this time. The
      withdrawal without prejudice enables the developers to resubmit
      their application for a Master Special Permit at any time, rather
      than being forced to wait two years. Stratouly admitted "maybe
      it's my paranoia" to make sure the application is complete (and
      also because he expressed concern that once he files the
      application for the $100-million shopping/housing/office complex
      on Route 20, the process is out of his control.)

      Responding to developers' requests about traffic studies, the
      Planning Board authorized its consultant, TEC, to meet with the
      developers' consultant from Vanasse Associates to conduct a
      peer review of the presumptions Vanasse is making before
      running its data models about the impact of traffic on
      neighborhood roads. The developer repeatedly tried in vain to
      expand the TEC scope to suggest solutions, but Planning Board
      Chair Lynne Dunbrack insisted TEC's role was limited to peer

      Although town attorney Mark Lanza said it could be legally "risky"
      to hold discussions prior to the application for a Master Special
      Permit, the Planning Board decided to schedule a public forum
      (not a hearing) for the two traffic consultants and representatives
      from the Board of Road Commissioners, Board of Selectmen,
      and Planning Board to vet findings. (A likely date is Dec. 13). The
      caveat is that all content must be entered into the record of the
      subsequent hearing. Stratouly acknowledged that traffic is a
      central and very sensitive issue, and more discussion now
      might help expedite the application. The developers didn't
      submit a traffic plan as part of the concept review.

      Up to this point, all discussions about traffic have been public
      meetings. It isn't clear that this process will be continued. Will
      boards insist on public meetings when their representatives
      meet to discuss the traffic issues?

      The MSP hearing schedule is still under discussion. The
      Planning Board says it needs more than the one or two
      sessions suggested by the developer. Dunbrack told the
      selectmen that Westboro held 14 sessions of a hearing for
      a similar mixed use project and the Northboro zoning board
      held 9 sessions, which the town planner estimated would have
      been 18 had it been before the planning board. There are at
      least two major issues to be resolved: whether the permits from
      other boards will be in place prior to the relevant hearings, and
      whether the developer decides to proceed with filing its MSP
      application before town elections next April.

      Developers' requests for very few hearing sessions might be
      realistic if a city government were involved. For Massachusetts
      towns the law is different: Everything leading to a board decision
      must be included in a hearing.

      Although the developers in the past insisted they were "ready to
      go," facts would indicate otherwise. For example, the
      Conservation Commission is still considering the wetlands
      boundaries of the property, and it is conceivable this could cause
      adjustments in the layout. Raytheon has indicated it expects to
      delay until late summer 2007 its environmental cleanup in the
      northern portion of the site. There are other timelines that also
      affect the project. These range from Department of
      Environmental Protection approval for the wastewater treatment
      facility to the numerous items to be evaluated during the review
      triggered by the Environmental Policy Act. And the Planning
      Board needs to hire a civil engineer and a public safety
      consultant, according to Frank Dougherty, a member of the
      development team.

      Now, the developers are emphasizing the need to have a
      complete application with "all corners squared."

      At the outset of discussions several months ago, the Planning
      Board and developers agreed they would be discussing one
      design that would function with either one or two access points.
      However, WVN heard developer Chuck Irving comment that the
      latest plan, endorsed by all parties, "wouldn't work" if there were
      only one entrance because retailers wouldn't want to be at the
      end of the street. Readers should bear in mind that the concept
      plan phase is not binding. So what we see now is not what we
      might get.

      Planning Board Chair Dunbrack attempted to clear the air of
      distrust and dispel the numerous criticisms by the developers
      that she was biased. She said she had spoken out against the
      bylaw because the process was flawed and the town did not
      insist upon market studies, but now that voters have approved it
      her job, and that of the rest of the Board, is to evaluate the
      MSP application in the context of the bylaw. "I am not going to put
      the town at risk because I have a bias against large stores. That
      is past now," she said, and she urged the developer team to try
      to build trust.

      Before Dunbrack's Nov. 13 comments, Stratouly and Irving had
      said several times that they might fail to secure the special
      permit because Dunbrack and the associate member were
      against it. They offered no evidence. (The special permit requires
      four of five votes; the associate votes only if a regular member
      has failed to attend required hearing sessions.)

      Some selectmen, two of whom are real estate developers, have
      been sympathetic to developer complaints. Selectman Michael
      Tichnor said the project "has to happen, and it has to happen in
      a reasonable time...The town can't afford a substantial delay."
      The Finance Committee is including expected tax revenue in its

      Developer Irving complained that "there doesn't seem to be
      respect for the money in the project." And Stratouly has
      mentioned his carrying costs several times, and his
      $650-a-hour lawyer.

      Dunbrack responded: "As town planners we have to take a
      longer view." She said the Planning Board is required to deal
      impartially with questions such as whether the design is
      appropriate, pleasing to residents, in conformance with
      applicable laws and regulations, and thus able to generate
      revenue for the town.

      One of Dean Stratouly's recent projects furnishes an example of
      what can happen if municipalities are careless. Because of a
      procedural error by Quincy officials, Stratouly built a housing
      project that was different from the application and avoided more
      than $1 million in promised payments.
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      Wayland Voters Network
      Michael Short, Editor
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