WVN #230:Sudbury sues over Town Center
- The Town of Sudbury has sued Wayland and the development
corporation over the proposed $140 million Town Center project
on Route 20.
The heart of the complaint is traffic on already clogged roads.
The appeal filed Jan. 31 in Superior Court seeks to annul the
Master Special Permit granted by Wayland's Planning Board in
January for the 372,500-square-foot shopping/office/housing
development. Twenty Wayland LLC and members of the
Planning Board are named as defendants.
Until the appeal is decided, Wayland and the developer can't
continue the next steps toward construction.
The appeal asserts that "...traffic concerns are a dangerous,
substantial and significant effect on the community and
surrounding roads accessing" the project.
Traffic concerns have hovered over the project from its inception.
As you'll see in the report below, the Planning Board approved
the Master Special Permit without knowing details about many
things, including traffic control.
The suit asserts that Twenty Wayland submitted a report
showing a "clear and substantial impact to traffic on surrounding
roads." Sudbury representatives appeared and submitted
comments and suggestions, the suit says, but the developer
and the Planning Board "refused and failed to address the
obvious and established traffic problems..."
Early in the process, Wayland selectmen invited their Sudbury
counterparts to a meeting at which there was cordial agreement
in principle to stay in touch and work together on traffic. How did
that come to this?
Molly Upton reports below on how the Planning Board arrived at
its 4-1 approval vote. There you may find reasons behind the
suit's allegations that the Board exceeded its authority,
provided insufficient legal notice of hearings and made
decisions that were "arbitrary and capricious" and "unsupported
by the evidence presented to it." The suit also says Twenty
Wayland's MSP application failed to comply with the zoning
bylaw passed by Town Meeting.
WHAT MSP DOES AND DOESN'T DO
The Master Special Permit (MSP) decision defers several
specifics to the site plan approval process in which the Planning
Board has distinctly less leverage. In effect, the Planning Board
doesn't know for sure what size stores will be where, or what the
layout or buildings will look like.
Chuck Irving of Twenty Wayland told the Wayland Board of
Selectmen on Jan. 22 that he hopes to break ground in August,
and if things go well open shops between fall 2009 and spring
2010. The suit could affect those estimates.
Under the terms of the MSP, first commercial construction
doesn't have to happen until 2013 or 2015 (the legalese is
difficult to decipher, including a reference to a nonexistent
subsequent paragraph) and the developers have indicated the
grocery store is the linchpin to the project. It appears
construction of the last residential portion doesn't have to start
PLANNING BOARD'S APPROVAL
The Planning Board voted 4-1 on Jan. 17 to approve the master
special permit for the Town Center on the 57-acre former
Raytheon site. The board closed the public hearing on Oct. 30,
and could not accept new information such as new traffic plans
and other material contained in a withdrawn final environmental
review. Other adjudicatory boards sometimes maintain the
ability to accept information while discussing details until
commencing the formal deliberations.
After the Board's vote one member hugged the developer's
attorney and was embraced warmly by a staunch supporter of
the project. Developer Dean Stratouly muttered that the
dissenting vote laid the groundwork for a lawsuit.
But wait, there was a subsequent wrinkle. The MSP document
was signed and filed Jan. 18. According to a Jan. 24 memo from
Town Planner Joe Laydon, the Planning Board's amended filing
of Jan. 23 incorporated words left out of the Jan. 18 version. The
amended decision does not change the appeal period for the
decision (which ends Feb. 7), the memo stated. Sudbury's suit
argues otherwise. The MSP document and follow-up memo are
posted on the Planning Board website:
DEARTH OF SPECIFICS
When 1,752 voters at the May 3, 2006 special Town Meeting
approved the mixed use zoning change, they were assured that
the Planning Board would nail down specifics of the project
before voting on the MSP. But in fact many key aspects have
been deferred until the site plan review phase despite the
specificity promised residents in the zoning bylaw.
According to the mixed-use overlay district (MUOD) bylaw, the
MSP "defines in detail the site, the site plan, the proposed uses,
site improvements, traffic impacts and their mitigation,
environmental impacts and their mitigation, future division of the
property, and other information required for the public and
boards of the Town of Wayland.
The bylaw also states: "The (mixed use project) MUP Master
Special Permit (a) specifies the Mixed-Use Project's design,
architectural character, public amenities, site improvements,
traffic improvements, mitigation, specific location of buildings,
and categories of uses for buildings."
In rendering a decision on an MSP, a board is required to
evaluate all aspects and determine that a project's benefits
outweigh the disadvantages.
But several key facts are not contained within the MSP, such as:
traffic mitigation that will be undertaken and the impact on
several streets in town; any new financial projections that reflect
the buildout extensions contained in the agreement; or any clear
idea of building size and location, or drainage plans, for starters.
Nor does the Planning Board know what the buildings will look
like, other than New England village style, what will be built
where (other than within certain "envelopes") or even where the
final streets will be. The buildout deadline is 2020, which could
be disappointing for those counting on additional near-term tax
revenues. The project was sold to voters partly as an essential
source of new tax revenue.
The developer has yet to submit its final environmental impact
report (FEIR) and receive comments from the Massachusetts
Environmental Protection Act Office (MEPA). The Planning
Board's approval prior to the state review puts the Board in the
position of having incomplete information. In addition, the
developer retains the right to discontinue the project if it deems
unsatisfactory Raytheon's verdict on the fate of the existing
activity and use limitation on the property. A longtime tenant,
Raytheon has taken responsibility for an environmental cleanup
that could affect building plans.
DEVELOPER PREFERRED SITE PLAN PROCESS
From the inception, Twenty Wayland's Stratouly objected to the
MSP process, preferring a site plan review. He stalled
consideration of the project in early 2007 until new board
members favorable to the project were elected.
The difference between the two processes is that with an MSP,
the Board has the right to reject a plan and the approval requires
four out of five members. A site plan review is a creature of the
zoning bylaw, not the state law, Town Counsel Mark Lanza
advised the board: "The board's ability to deny a site plan is
limited to very narrow circumstances; if the site plan shows a
violation of zoning bylaws it can be rejected. The board can
impose reasonable conditions; denial can masquerade as
Site plan review must be completed within 60 days after the
Board receives an application. Sudbury's appeal stops that
The MSP decision was drafted by Lanza, apparently assisted by
Twenty Wayland's attorney Adam Weisenberg.
The building designs will be largely determined by the developer
and tenants; all the Planning Board can require is New England
village style. Further, there is a provision for piecemeal approval
of buildings in Phase I Site Plan Review, with "generic
representations" provided of those buildings not up for review at
In addition, the MSP notes that the site layout may change.
The Board of Selectmen, Board of Road Commissioners and
the Planning Board were unable to collaborate and render traffic
decisions that could have been included in the MSP decision.
Instead, what the Town got in the MSP permit was a series of
"recommendations" to the two other boards and the
Massachusetts Highway Department and no idea of what
mitigations will be implemented or projections for the effect of
their combined efforts.
One such recommendation was that Mass Highway "retain the
maple tree with a 48-inch trunk located at the southeasterly
corner of the Mellen Law Office Green on Route 20. Another was
to "minimize the reduction of the pervious surface area of the
Mellen Law Office Green." And also in the area of the historic
Mellen Green, "decrease the width of the travel lanes in Route 20
to 10 feet." The Board also recommended the town use a portion
of the $3,03 million gift from Twenty Wayland to construct a
sidewalk between the current center of town and the Raytheon
property. Such recommendations are non-binding and not
Members of the development team noted privately that much of
the Mellen Green is within the road right-of-way, implying it could
disappear. The Town has been somewhat successful with Mass
Highway over the years in preventing that intersection from
becoming another Speen Street, so preservationists can only
hope for some success this time around because there are no
metrics in the MSP decision.
Mass Highway is looking to hear consensus from all town
boards on a plan that 20 Wayland is proposing for which all the
changes are in the right of way, Town Administrator Fred
Turkington told the selectmen. The developer has yet to submit
the plan to the pertinent town boards, however.
COMPLIANCE ASSURANCE VAGUE
In reviewing the site plan, the Board has few specifics to rely
upon. Nor does the building commissioner have any reference
metrics by which he can enforce the MSP. For example, in site
plan review, the "Board shall use as guidance (i) the building
design guidelines promulgated by the Board for the Concept
Plan Phase of the MUP application process and (ii) the
applicable illustrative portions of the plans submitted by the
Applicant. Although said portions of the plans and guidelines are
not binding on the Applicant or the Board."
For example, the residential buildings bordering the Sudbury
River can be no closer to the river than "the line parallel to the
predominant westerly façade of the respective building located at
the point where its footprint as shown on Exhibit A is closest to
the Sudbury River." Whether the building inspector can verify this
measurement remains to be seen.
Other language in a special permit within the MSP essentially
allows the residential buildings to be 40 feet high for "portions of
building roofs to allow variation and create additional head room
on the upper floors." During many discussions, the intent was to
limit additional height to providing architectural variation. The
residential buildings are near the federally protected Wild and
The subject of wastewater appears to contain contradictory
language. "Prior to the issuance of a building permit for any
building in the MUP, the Applicant shall furnish evidence to the
Building Commissioner that it has an adequate and lawful
means of wastewater disposal for such building." But the next
sentence reads: "The present (or any future) treatment facility
operated by the Wayland Wastewater Management District
Commission or any successor shall be deemed an adequate
and lawful means of wastewater disposal for 45,000 GPD
(gallons per day) (or such greater capacity, if any, as may be
allocated to the Applicant)."
In other words, the existence, not the capability, of a treatment
plant is all that is required. State environmental officials may
have something to say on this.
Despite efforts to limit on-site irrigation, and a town bylaw to that
effect, the MSP allows areas around buildings, residential areas,
and stormwater treatment areas to be irrigated by spray
irrigation. There's no mention of the bylaw limit of 15,000 square
feet of irrigation. Perhaps the area will be within the bylaw, but
there's no way to know that from the MSP or the submitted
Landscaping might be a mystery. None of the prior plans such
as those in the Concept Plan or "the applicable illustrative
portions of the plans referenced in Part 1 of this decision shall
be considered binding on the Board or the Applicant."
The Planning Board did ensure that trees near the river will have
a head start on their role as a screen. There will be at least 15
red maples or other species acceptable to the applicant and
jurisdictional authorities planted in the river buffer area during
the first planting season occurring after the issuance of the first
There is a performance bond for major streets and a water main,
but nothing for the developer's portion of the wastewater
treatment plant, which is expected to consume at least $2 million
of a bond the town is expected to float.
A public green is preserved, with usage rules to be determined
by Twenty Wayland in consultation with the Park and Recreation
The applicant has to submit a new final environmental impact
report (FEIR) to the Massachusetts Environmental Protection Act
Office which considers such things as traffic, wastewater and
stormwater disposal, snow storage, lighting, impact on the river,
and other such elements.
Raytheon still determines the fate of existing activity and use
limitation on the property, and the development agreement
states that Twenty Wayland may opt out of the agreement should
Raytheon not renegotiate this limitation to Twenty Wayland's
According to the development agreement between Twenty
Wayland and the Board of Selectmen:
-- When the MSP is "effective" (after any appeals/suits have been
resolved) the Town will receive $230,000 from the $3.03 million
gift; $35,000 for maintenance of Cow Commons, and $50,000
for a wireless alarm system.
-- Prior to certificate of occupancy (CO): $30,000 for maintenance
-- After issuance of the first CO: $75,000 for mitigation on
-- After the wastewater plant is built or upgraded: Twenty
Wayland will reimburse the town up to $175,000 for the town's
share of costs for the wastewater plant.
-- Within 90 days after the first building permit is issued: the town
will receive the remainder of the gift, $2.8 million.
SPECIFICS, DATES UP IN THE AIR
Early in the MSP process, Twenty Wayland introduced the
concept of "building envelopes" or general areas within which
clusters of buildings will be located. But they waited until Oct. 23
to make their "envelopes" presentation, after the town's technical
consultants had already weighed in. By having the Planning
Board approve the envelopes, the specific locations and sizes of
buildings are left to be determined in Site Plan Review despite
requirements for specifics in the zoning bylaw.
The buildout schedule has been extended. There appear to be
several factors determining actual construction. Nothing, it
seems, has to happen until there is a finished food store.
However, the applicant may extend the commercial start date by
five years (one year extensions for up to five times), so
construction on the retail portion doesn't have to begin until art
After the issuance of a certificate of occupancy for the food store,
construction of 80 percent of the gross floor area (GFA) of the
commercial component shall begin not later than two years.
And construction of 90 percent of the GFA shall begin not later
than three years after the certificate of occupancy for the food
For the residential components, the MSP requires the 8-12 units
atop the commercial buildings should be substantially complete
when the first floors are completed.
In the major residential area with the large buildings on the
northwest corner, the first building shall be adjacent to the public
There are requirements to start initial residential construction
within a year of the first building permit for commercial
construction, and to start the rest of the residential construction
within six years after the initial start date. However, the paragraph
also states the applicant can extend construction of the initial
and final residential portions by one year each. In any case, the
final residential portion start date shall not extend beyond Jan. 1,
If you were among the 20 percent of 8,697 eligible registered
voters in Wayland who approved the zoning bylaw at the May
2006 special Town Meeting, is this what you thought you were
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Michael Short, Editor