WVN Newsletter #192: Lawsuit over turf
- View SourceDear 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.
RESIDENTS FILE TURF SUIT
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
"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.
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.
PLANNERS OK TOWN CENTER CONCEPT PLAN
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
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
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
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