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WVN #230:Sudbury sues over Town Center

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  • waylandvoters1
    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
    Message 1 of 1 , Feb 4, 2008
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      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
      until 2020.

      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:
      http://www.wayland.ma.us/planning/Towncenterproposal/MUOD
      _downloads-MSP.htm


      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
      conditions."

      Site plan review must be completed within 60 days after the
      Board receives an application. Sudbury's appeal stops that
      clock.

      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
      that time.

      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
      enforceable.

      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 fa├žade 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
      Scenic River.

      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
      "illustrative" plans.

      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
      building permit.

      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
      Commission.

      FUTURE HURDLES

      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
      satisfaction.

      PAYMENT TERMS

      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
      of lights.

      -- After issuance of the first CO: $75,000 for mitigation on
      neighborhood roads.

      -- 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
      least 2013.

      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
      store.

      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
      green.

      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,
      2020.

      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
      voting for?


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