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WVN #329: Town Center developer loses appeal

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  • waylandvoters1
    Dear Wayland Voter, The Town Center developer has lost another round in its lawsuit against the Wayland Historic District Commission. The latest development
    Message 1 of 1 , Dec 23, 2009
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      Dear Wayland Voter,

      The Town Center developer has lost another round in its lawsuit against the Wayland Historic District Commission. The latest development further highlights the conflict between the Commission and the Board of Selectmen.

      Also in this newsletter:

      -- The Conservation Commission averted a potential controversy over plans for the new high school.

      -- Wayland scenery is featured in the Boston Pops holiday concert.

      TOWN CENTER DEVELOPER LOSES APPEAL

      The Massachusetts Appeals Court has rejected an attempt to prevent the Wayland Historic District Commission from defending itself against a suit filed by Twenty Wayland, LLC, developer of the proposed Town Center project.

      The Dec. 21 decision denies a Dec. 16 appeal filed by Twenty Wayland and supported in a brief from the Town of Wayland and the Massachusetts Municipal Association. The appeal sought to overturn a Superior Court ruling upholding the Commission's right to seek counsel when the town refused to provide it.

      The lower court had rejected Twenty Wayland's argument that the Commission had no options after Town Administrator Fred Turkington refused to appoint counsel or allow members to defend the case themselves. Judge Leila Kern ruled that Turkington had exceeded his authority.

      The 37-page MMA and Selectmen amicus curiae brief was prepared by Kopelman & Paige, whose special legal services the selectmen have used on other matters. It has not been disclosed yet who paid for the amicus brief. The Commission's attorney is providing pro bono legal services.

      The concise Appeals Court order recognizes "the extraordinary circumstances here" and says the plaintiff is not entitled to a default judgment simply because town bylaws give Turkington sole authority to appoint counsel.

      Turkington was hired by and reports to the Board of Selectmen, which has backed Twenty Wayland from the time the project was conceived.

      Had Twenty Wayland prevailed on this issue, the Commission's volunteer lawyer would have been disqualified and the Commission would have lost the suit for lack of a defense.

      A wider legal issue in the rejected argument is the apparent authority of a town employee to nullify the decision of any municipal board. Thus an official who was not a party to hearings or deliberations could prevail over a duly constituted governmental body.

      Town bylaws differ on dealing with lawsuits. Weston, for example, requires that every legal complaint be answered.

      Twenty Wayland's suit seeks to overturn the Commission's Certificate of Hardship allowing Twenty Wayland to widen roads only after it has been shown that the Town Center would be large enough to create traffic sufficient to justify carving into the town's Historic District.

      Because of the troubled economy, Twenty Wayland says it will build in phases, beginning with a 45,000-square-foot supermarket and approximately the same amount of other retail space and apartments. Some residents and officials have expressed doubt that the Town Center would ever approach the 372,000 square feet in the original plans.

      But the developer says it plans to widen all roads in the center of town and add a traffic light at the intersection near the library, provisions adequate to accommodate the full project, before starting construction.

      Barring further appeal, the appellate court's swift decision presumably opens the way for a court to decide for or against the Commission on the substance of its Certificate of Hardship approval. Twenty Wayland, which filed the suit on July 30, says it hopes to break ground on the Route 20 project by late spring.

      -- Michael Short

      CONTROVERSY ON HIGH SCHOOL PLAN AVERTED

      At the Dec. 17 Conservation Commission meeting, a potential controversy was averted. The High School Building Committee (HSBC) made presentations to leading to what it hoped would be a determination that Dudley Brook is intermittent. Dudley Brook runs out of the north end of Dudley Pond, goes north and west and then skirts the south side of current high school parking lots on its way to the Sudbury River.

      The HSBC tried to convince the ConCom that Dudley Brook, which they called an "unnamed stream", actually peters out on the Happy Hollow School property on the east side of Old Connecticut Path, and that the stream channel on the high school property is merely an unrelated drainage ditch. But the ConCom has, literally, centuries of data contradicting such a claim. Nineteenth-century plans show the stream crossing what is now Old Connecticut Path and entering the original wetlands on the high school side of the road. A pipe running under the roadside basketball courts now connects the two segments.

      The new high school's planned academic building is to be placed on high school parking lots adjacent to Dudley Brook. A stream can be classified as either intermittent or perennial and if it is classified as perennial, it is considered the same as a river. State conservation laws about riverbank development are strict. The HSBC feared that if Dudley Brook were classified as perennial, building plans might have to be modified considerably.

      In the case of Dudley Brook, evidence of flow would have to be observed when the Happy Hollow wells were off-line because the wells draw water from the brook, making it appear to be drier than it would be without wells. Another complication is that the brook starts at an artificial dam on Dudley Pond. When the pond level is low, very little water is flowing out of the pond into the brook. But determination of whether a stream is intermittent or not has to be calculated in the absence of artificial dams and of well draw-down.

      This controversy was made moot, however, because several members of ConCom were convinced that Dudley Brook was indeed a perennial stream. But because the proposed project is mostly redevelopment, not new development, and because of the vast overall improvement of water protection by other design elements within the project, it would not matter, and the plans for the academic building would probably not have to be significantly changed.

      ConCom member Andy Irwin said that the Commission has always considered Dudley Brook to be perennial. He then advised the HSBC that he did not want his tax money used to pay for an expensive hydrologic study because, in his opinion, the academic building would not have to be sited differently. ConCom member Bob Goldsmith concurred.

      Irwin mentioned the "no significant adverse impact" criterion and suggested that the destruction of the parking lot nearest the Happy Hollow wells and other design elements, such as moving the leaching fields to the north, provided an offset to new incursions towards Dudley Brook. HSBC engineers said there would be only one new incursion, which would be ten feet closer to the brook than the current parking lot is and that the closest point to Dudley Brook was still 44 feet away.

      Some of the standards the ConCom works to are rigid, but some are more flexible and allow for judgment. Member Joy Viola noted that a requirement for no disturbance within a 30-foot boundary was cast in stone. But between the 30-foot line and the 200-foot limit of the ConCom's jurisdiction, the Commission can consider the context of the request, both in terms of need and the provision of compensating positive elements elsewhere within the project. Members sent strong signals that they would look favorably on the HSBC's proposal, but they could not make any actual commitments because the project as a whole was not yet legally on the table.

      Similarly, the Town Center project was allowed to plan a grocery store building near a stream at the southeast corner of their land because the current Raytheon office building is already there. This is another example where redevelopment near a stream was allowed although the stream was not convincingly demonstrated to be intermittent.

      -- Betty Salzberg

      POPS FEATURES WAYLAND AND SUDBURY RIVER

      The Sudbury River in Wayland is being featured as part of the Boston Pops holiday production.

      Wayland resident Richard "Gus" Sebring, principal horn of the Boston Pops Orchestra, was skiing on the river last winter when he took a series of winter landscape photos with his cellphone. With sponsorship from the Sudbury, Assabet, and Concord Wild and Scenic River Stewardship Council, US Fish and Wildlife Service, and Sudbury Valley Trustees, he set them to a score and turned them into a four-minute production which in turn was made part of this year's Pops Holiday Concert.

      Below are recently posted links to videos and podcasts about the Gifts of Great Meadows Boston Pops production. For the YouTube pieces, if you have a broadband connection and a good monitor, it is suggested that you use the HD option to enjoy the stunning visuals.

      YouTube (BSO) in HD
      http://www.youtube.com/bostonsymphony#p/u/0/_1YwgSi_Rr0

      YouTube (Boston Pops) in HD
      http://www.youtube.com/thebostonpops#p/a/u/0/4Yzf6WIaGKc

      YouTube (Keith Lockhart) in HD
      http://www.youtube.com/keithlockhart#p/a/u/0/OCN6qothtaU

      iTunes (Pops Podcast) - Best to search for it in iTunes if you want
      to subscribe...
      http://www.bso.org/images/mp3/podcast/pops_concert_preview.xml

      iTunes (BSO Podcast) - Best to search for it in iTunes if you want
      to subscribe...
      http://www.bso.org/images/mp3/podcast/BSO_concert_preview.xml

      The concerts end Sunday, but weekend tickets may still be available. See
      http://www.bso.org/bso/mods/content1.jsp?id=32600047

      -Tom Sciacca

      Tom Sciacca is Wayland's representative to the River Stewardship Council.

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      Michael Short, Editor
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