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WVN #313: Who delayed Town Center? RETRANSMITTED

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  • waylandvoters1
    NOTE: Some readers did not receive Newsletter # 313. Dear Wayland Voter, The Town Center developers demands to delete affordable housing and delay gift
    Message 1 of 1 , Sep 17, 2009
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      NOTE: Some readers did not receive Newsletter # 313.

      Dear Wayland Voter,

      The Town Center developers' demands to delete affordable housing and delay "gift" payments to the town prompt a look at the background to last week's action.

      Twenty Wayland told the Board of Selectmen on Sept. 8 that a typical project by the firm requires two years and about $3 million in development costs. Early on, the developer acknowledged that it had never built a mixed-use project and then never shared their market studies with the town despite repeated requests to do so.

      The Wayland Town Center has taken more than four years and cost more than $8 million in excess of expectations, the developers say.

      Twenty Wayland brought initial delays when it initially proposed a project that voters in 2005 decided was too large. When the Planning Board was considering the current version, now scaled down to about 370,000 square feet, Twenty Wayland more than once threatened to walk out if it didn't get its way, then made good on the threat. The process stopped in 2007 until voters, at the selectmens' urging, elected candidates to boards who promised to pursue the Route 20 development aggressively.

      The process has been marked by acrimony, angry words and legal action. Backed by the selectmen at every turn, Twenty Wayland has fought back hard when its plans were questioned by local boards. The developer also disagrees with the Department of Environmental Protection over wastewater and conservation requirements.

      Many steps to acquire building permits have been achieved, but complex matters remain. A look at the process raises the question whether things could have gone differently had Twenty Wayland followed the advice of a former selectman, Brian O'Herlihy, who says he counseled the developers to be patient and respectful.

      In this newsletter we look at two town commissions that have been accused of delaying the commercial/residential project, the Historic District Commission and the Conservation Commission.

      The Town Center project has resulted in continuing divisiveness. On one side are those who for various reasons badly want it built and decry regulation as time-consuming technicalities. On the other side are those who believe that a town, or for that matter a nation, is judged in part by how it cares for its cultural and environmental patrimony.

      In any case, the two commissions are convinced they are simply doing what the law compels.

      -- Also in this newsletter: Wayland school rankings and a top limit of $82.5 million to build a new high school.


      Twenty Wayland waited until last January to apply for a required permit from the Historic District Commission. It withdrew the application, then filed again in February.

      By this time the economy was in dismal shape, many business projects around the country were canceled or postponed, and eventually there were discussions with Twenty Wayland about building the Town Center in phases. But Twenty Wayland was still asking the Commission for permission to perform all the alterations to the Historic District before the start of any other construction.

      At the same time Twenty Wayland was, and is, pursuing an alternative, seeking tenants to repopulate the existing 410,000-square-foot building once occupied by Raytheon and then Polaroid.

      The Commission is charged under state law with protecting the historic district along Routes 20 and 27/126 near Wayland's central crossroads. Ultimately it came up with a plan to sacrifice part of the district to road widening, but only if the Town Center is built to an extent that would require controlling increased traffic.

      Twenty Wayland showed little interest in discussing this compromise, and the selectmen produced an opinion from town counsel Mark Lanza that they had the power to override the Commission and order road-widening as a matter of public safety.

      In mid-August Twenty Wayland sued the Commission in Superior Court. The Town of Wayland wasn't named, as is usual in such actions, but of course the town is connected to the Commission and is subject to the suit.

      Since then the Commission has discussed the matter only in executive (closed) session, permitted by law when discussing litigation. The selectmen have discussed the litigation in executive session three times since Aug. 17, without the Commission present.

      Since town counsel, hired by the Board of Selectmen, had already issued an opinion that disadvantages the Commission, it would seem to be a conflict of interest for him to represent it against the developer. When the Commission went into closed session on Sept. 10, Lanza wasn't present.

      The ball is now in the Commission's court.

      The Commission had issued a Certificate of Hardship allowing the project but specifying that no changes occur on roadways in the district until the first 94,000 square feet are occupied and building permits issued for the next phase of development.

      According to the Certificate, "the bylaw and the WHDC requires an explanation (from the applicant in collaboration with the Board of Selectmen) of which elements of the development will potentially create an unsafe and dangerous condition and which elements of the traffic plans in the Historic District will mitigate the unsafe and dangerous conditions."

      Twenty Wayland's suit challenges several conditions of the Certificate as well as the "local historic district rules and regulations" which it says "effectively preclude the development of the proposed Wayland Town Center."

      Despite plans to build in phases, Twenty Wayland wants to secure all permits at the outset. Permits allow building but any construction is at the developers' option. Permits would enhance the value of the property should the developer decide to sell it.

      The Commission says it would be irresponsible to destroy part of the Historic District unless the Town Center is clearly large enough to demonstrate a serious traffic problem. Commission Chair Gretchen Schuler pointed to the possibility that part of an irreplaceable historic heritage could be destroyed for a supermarket. (Stop & Shop is the only known potential tenant.)

      The developer's complaint alleges that the "Certificate imposes conditions which either contain substantial errors of law, are an abuse of discretion, arbitrary, capricious or lack substantial and/or reliable supporting evidence. Moreover, certain conditions are beyond the scope of the Commission's jurisdiction and are impossible to perform." The Commission "lacks authority with respect to the need or the location of structures," the complaint continued.

      The Board of Selectmen wrote in an Aug. 4 letter to the HDC that "we will not provide any supplemental information" because the HDC had not previously asked for an explanation of the selectmen's ruling that the proposed infrastructure improvements were necessary for public safety. The letter referred to a report that Mass Highway would not consider phasing without reopening the environmental review process.

      Commission members' understanding from a June meeting with Mass Highway was that Mass Highway could not issue a permit that would be inconsistent with the state's environmental Certificate. Frank Dougherty of Twenty Wayland responded that he would not reopen the Massachusetts Environmental Policy Act (MEPA) process because it would take 18 months.

      The selectmen's letter didn't substantiate the need to reopen the MEPA Certificate process. MEPA regulations allow for a project proponent to submit a written request for an advisory opinion as to whether a project change (such as phasing) would trigger reopening the agency's process. Twenty Wayland hadn't shown the town that it had filed for such a determination.

      The selectmen's letter reiterated that Wayland town counsel had previously advised the HDC that its only authority lay in placing "reasonable conditions" on the appearance of historic structures but not on their location.

      The letter indicated that Glezen Lane residents, whose traffic-related suit the selectmen had settled without conferring with the Commission, would require traffic data quantifying the impact of the first phase of development, and that the residents could not envision a scenario under which the development could open without a traffic light at the 126/27 intersection. Part of the settlement was agreement to construct the light prior to the issuance of a building permit for the town center.

      Citing a selectmen's meeting June 22, the letter said, "We all expressed our disappointment that phasing was not practical at this late juncture in the permitting process. With the question of phasing behind us, we were stunned to find a timing condition inserted in the HDC decision."

      Town Counsel Mark Lanza had been advising the Commission during the hearing, deliberations and drafting of Certificate language.

      -- WVN Staff


      Wayland's Conservation Commission is obligated under law to ensure that development meets state and federal environmental regulations. Though Twenty Wayland blames boards for delays in issuing building permits, a comparison of the Town Center with Wayland's Jewish Cemetery may offer clues to the ways processes can differ.

      The two projects are of different sizes and complexity, but both offer environmental challenges. The cemetery hearing appears to have been civil and focused on finding solutions despite very strong feelings from neighbors. The Town Center process has been going on for some time and seems destined for further delay.

      Jewish Cemetery

      This project involves an access road to a cemetery. The road was first proposed to cut through wetlands containing five vernal pools. Construction of anything in that area was problematic.

      But the developer, the Jewish Cemetery Association of Massachusetts, or JCAM, was creative, respectful, and flexible. JCAM made agreements with abutters, met with neighbors, listened carefully to suggestions and will probably have an Order Of Conditions in two weeks for construction agreeable to all parties.

      At first, ConCom asked that JCAM use its land at the end of Holiday Road for access. This land has no wetlands. But it meant that funeral processions would have to traverse East Road and Holiday Road. Residents objected strongly and attended hearings regularly.

      Eventually a compromise solution was reached. JCAM worked with neighbors on Concord Road (the Howlands, the Gregorians, and the Metricks) by purchasing some slivers of land and by exchanging some land. Part of the access road will go through land now owned by the Howlands and the Howlands have agreed to give JCAM an easement. An effort was made to save existing large trees, following remarks from ConCom. A large portion of the land (85 percent of the Concord Road parcel still owned by JCAM) will have a conservation restriction. The Howlands will have more land which they can use for a new septic system when needed.

      Twenty Wayland

      The other project involved a 56-acre property, a much more complex proposal but with adequate buildable land. But Twenty Wayland's proposal left no room for required drainage basins, no approved location for the additional septic system , and insufficient room (outside the 200 foot buffer around the Sudbury River) to place a municipal building where it was planned.

      The municipal pad delineated in the 2006 Concept Plan eventually was erased from the plans, leaving the town to permit it separately, putting consideration of a new taxpayer-funded library and/or community center on further hold. Meanwhile, for years the developer has disagreed with the state Department of Environmental Protection over the agency's insistence that the project is required to have a state sewer connection permit. That disagreement has continued into 2009.

      Twenty Wayland was scheduled to finish hearings for both onsite and offsite (roadway) applications with the Commission in December, 2008 as outlined in an official ConCom schedule agreed to in September 2008, based on the developer submitting complete applications.

      ConCom held numerous special meetings just for this project to make the schedule possible. But Twenty Wayland repeatedly called for delays, was not ready with documents, did not pay the town's peer review consultants, disagreed with the regulations, and canceled scheduled meetings so that the hearing did not finish until May 2009. ConCom issued its approval, and then Twenty Wayland appealed the conditions to the DEP, causing further delay. This was only for the on-site (shopping center and residences) part of the project.

      Since the consultants must be paid before taking on further work, Twenty Wayland has asked for continuances for the off-site hearing, which seems postponed indefinitely. ConCom cannot evaluate the technical documents regarding the road widening without professional consultants and cannot hire these consultants until past bills are paid.

      -- Betty Salzberg


      The High School Building Committee has voted an $82.5 million "not-to-exceed" budget to build a new Wayland high school.

      Wayland has been told to expect 40 percent state reimbursement of agreed-on expenditures. Such things as demolition of existing buildings and constructing a wastewater treatment plant may not be eligible for reimbursement.

      The Massachusetts School Building Authority says that despite state fiscal difficulties it has enough money to reimburse projects already selected for aid, including Wayland's.

      HSBC Chair Lea Anderson told WVN that the $82.5 million includes reimbursable and non-reimbursable costs, and is based on more square footage than the final plan is likely to contain.

      "...the entire cost will certainly be lower than the not-to-exceed number..." Anderson said.

      A town election is scheduled for Nov. 17. If voters approve taking on the debt, a special Town Meeting the next night would vote on continuing the process. The amount voters will be asked to borrow will depend on the amount of reimbursement, now being negotiated with the Building Authority.

      The unanimous Committee vote came on Sept. 3. The HSBC has been expanded (two vacancies are unfilled) but still includes most members of the committee that presented a plan that failed at the polls in January 2005. The cost then was estimated at about $57.3 million, with no guarantee of state aid.

      HMFH, the architectural firm that produced designs for the 2005 plan, was hired to produce the 2009 version.

      The HSBC next meets at 7 p..m. on Thursday Sept. 17 on the second floor of the Wayland town building.


      Boston Magazine's latest rankings of area high schools shows Wayland in eighth place.

      Weston High School was ranked No. 1, trailed by Dover-Sherborn, Concord-Carlisle, Lexington, Newton South, Newton North and Wellesley.

      A Boston Globe survey headlined "More bang for your buck" ranked Wayland behind 22 other towns (and equal to 16 others) by measures aimed at showing "which towns not only have terrific schools, but relatively affordable homes."

      Among towns ranked higher than Wayland were Concord, Boxborough, Carlisle, Marlborough, Westborough, Holliston, Burlington, Waltham, and Weston.

      The survey measured MCAS scores, student-teacher ratios. diversity and property assessments, though not property taxes.

      Another Globe survey showed Wayland ninth in Massachusetts in average SAT score with a combined 1,838 for math, reading and writing.
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      Wayland Voters Network
      Michael Short, Editor
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