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WVN #373: Town loses building suit; 2 contrasting citizen gatherings

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  • waylandvoters1
    Dear Wayland Voter, Wayland selectmen predicted that a lawsuit would compensate Wayland for the large expenses of repairing the flood-prone Public Safety
    Message 1 of 1 , Oct 6, 2010
      Dear Wayland Voter,

      Wayland selectmen predicted that a lawsuit would compensate Wayland for the large expenses of repairing the flood-prone Public Safety Building. A jury decided otherwise.

      Also in this newsletter: Citizens sound off at two strongly contrasting local meetings -- a "values forum" and a Historic District Commission hearing involving the Town Center project.


      Wayland has lost its suit against the engineering firm responsible for the design of the drainage system in the flood-plagued Public Safety Building.

      After a 12-day trial ended on Sept. 30, a jury found in favor of BSC Inc. Wayland was ordered to pay the firm's legal costs.

      Wayland selectmen met in executive session on Oct. 4 to consider an appeal, then issued a statement about the verdict. There was no word on a possible appeal, nor an immediate response to WVN's request for financial information.

      When Wayland selectmen signed a settlement agreement with the architectural firm Finegold Alexander for $550,000 on Feb. 8, 2010, they said they were confident that continued action against BSC would be successful, presumably for a considerably larger sum.

      Troubles began soon after the 26,000-square-foot building was finished in 2003. Before the project began, some questioned whether proposed methods could protect the building from the prevailing high water table and adjacent wetlands. Cracking and heaving of the basement floor were noticed by 2005. Damage continued, and the floods of last April interrupted power and required pumping for six weeks.

      Alleging defective design, the town filed suit in September 2006. The settlement with Finegold Alexander earmarked $525,000 for work on the building envelope and $25,000 toward work on the basement slab and drainage systems.

      The settlement didn't require Finegold Alexander to admit liability. Because of a confidentiality agreement, Wayland officials were generally silent.

      But they explained that they settled with the architect because "available insurance" wouldn't have covered a judgment for alleged flaws in both the envelope and the slab. In the settlement the town described the "underslab drainage defect" as more complex than the building envelope defects and asserted the belief that it would win an amount in the BSC action that was within insurance policy limits.

      Where the town stands financially at this point hasn't yet been explained. Wayland's legal costs (estimated at $250,000 at the 2008 annual Town Meeting), and now the defendant's, haven't been disclosed. FEMA is expected to cover some of the damage from last spring's flooding.

      Voters initially appropriated $5.75 million for the Public Safety Building, then approved seven more appropriations totaling $2.42 million, much of that to deal with water damage. Repairs couldn't wait for the results of a suit. Most of the exterior siding was replaced in 2008.

      At the 2008 annual Town meeting, voters forced the selectmen to explain a $600,000 capital request for repairs to the building. Petitioners argued for a warrant article to create an independent capital facilities planning and coordinating committee like those in some other communities, calling the Public Safety Building a "disaster." Voters approved the financial request but rejected the planning committee article, which was opposed by the Finance Committee.

      According to the selectmen's statement on the trial outcome, BSC argued that damage was not caused by defective design but by the proximity of a brook and the height of the water table. (The water table is so high that rainfall much less severe than the 2010 flood waters can affect Route 20.)

      "We have great respect for the jury's deliberations, but respectfully disagree with the conclusions," said Steve Correia, chairman of the Board of Selectmen.

      -- Michael Short


      A stranger visiting the large hearing room in the Town Building last Wednesday and Thursday nights would have thought he or she was in two different towns. The group Wednesday night largely thought Wayland was a bucolic paradise. The group Thursday night was adamant that it wants more paving.

      Wednesday was a "Values Forum" sponsored by the selectmen. In recent years the term "semi-rural" has been used to characterize part of Wayland's appeal, apparently a generalization of the extensive conservation land that was once frequently cited as equalling the schools as a town asset. But it's unclear where this term came from or precisely what it means. The Selectmen organized the forum to try to get a citizen consensus of the term's meaning and importance. They also asked the more general question of what characteristics make Wayland a desirable place to live.

      A couple of speakers kicked off the discussion of each question; then the participants broke into six groups of about eight people each to consider the questions. The tone of the meeting was polite and collegial, with similar answers from all the groups. But folks generalized the discussion to far more than physical characteristics and desirable features, also listing negatives and social and governmental features of the town.

      The first item was the meaning of "semi-rural." Open space, views of fields, ponds, and the river, leafy streets, wildlife, and low density development were a common theme. So were participatory town government and a small-town community feel. "Not Newton" was the way one group summed it up. On the negative side, an unsightly Route 20 was cited and the new CVS was regarded as making us look like Sudbury (not a complimentary description). Heavy traffic and high taxes were also uncharacteristic of "semi-rural," some said. Others rejected the term, believing that "suburban" was more appropriate. The need to add revenue was mentioned, but no one questioned the desirability of Wayland's "semi-ruralness".

      With respect to the more general question "What makes Wayland a desirable place to live," the answers were more diverse. Schools were mentioned several times, but as only one of many factors. Location midway between Boston and Worcester and convenient major highway access was another. Extensive green spaces with lots of places to walk, as in the earlier segment, was repeated, as was small-town accessible government. The town's historical heritage and role in US history were cited, as was its religious diversity. The library was lauded, as was the safety of the town. Not having a regional school system and a commitment to affordable housing were mentioned. Relative affordability (at least compared to Concord) was listed. Several noted the extensive volunteerism as a positive.

      But the divisiveness in town was mentioned as a strong negative. A selectman ascribed it to a small number of naysayers. But another citizen blamed it on a fundamental conflict between older residents and newer citizens whose only interest was the schools.

      Few younger residents attended the Values Forum. The average age of the 56 forum participants was 62. Nobody in their 20s or 30s. Eight were in their 40s. Everyone else (about 85 percent) was eligible for an AARP card. And about 85 percent are either current or former elected or appointed volunteers in town government.


      In contrast, the great majority of attendees at the hearing on Thursday night were younger people, many of whom announced they were school parents (a demographic group representing about one-third of Wayland households). In fact, emails had been circulated for several days soliciting attendance at the meeting, claiming it to be a joint request from the selectmen and the Town Center developer. The email was clearly aimed at school parents, as it requested they attend the meeting after a school event. The email went on to say there would "be a large group attending against the Town Center". Another version of that email was recirculated with similar content ostensibly from Selectmen Chair Steve Correia.

      In fact, no one at the hearing spoke against the project, and a handful of attendees voiced support for the HDC. Many spoke in support of the project, and some of the comments included personal attacks on the commissioners.

      The HDC meeting began inauspiciously, as Twenty Wayland, the developer, had delivered a revised settlement agreement to the HDC only late that afternoon and the members had not had time to read it or confer with counsel. Consequently, the HDC recessed to executive session for about 45 minutes to meet with its attorney and consider the new proposal.

      When the public meeting reconvened, the HDC voted 5-1 to reopen the public hearing on the Certificate of Hardship. The commissioners were concerned about the legal language of what appeared to be a hastily drawn agreement. Some of the terms, for example, appeared to bind the commissioners as individuals rather than as a commission. Consequently they would agree to vote on the agreement only after the HDC attorney works out precise acceptable language with the Twenty Wayland attorney.

      While the HDC's attorney indicated that progress had been made, the commissioners were looking for more specificity about Bank of America's commitment to financing the project. The two lawyers agreed to work on the legal language within a few days, and the Commission set Oct. 12 as a continued hearing date at which time they could vote final approval.

      When a public comment period was opened, most comments focused on issues not relevant to the HDC deliberations or decisions. For example, one young woman spoke of how much she would prefer to shop at a supermarket in Wayland rather than Sudbury. Another spoke of how she wanted her children to be able to "make memories" by celebrating after a soccer game in a Wayland restaurant. A number of speakers voiced frustration at the five-year approval process and pressed the HDC to stop its delay.

      Chairman Schuler noted, however, that the developer had applied to the HDC in 2009 and its Certificate was issued in a few months' time. After that, Twenty Wayland sued the Commission, and there was no progress on an agreement until last month. Despite the offered timeline of actual events, criticisms of the commissioners continued from the audience.

      Schuler appeared at the selectmen's meeting the following Monday night during public comment to express disapproval of the behavior of at least one selectman who joined in audience applause in the wake of emotional public comment directed at the HDC. She also said it was inappropriate for Selectmen Chairman Correia to lend his name to the emails circulated before the hearing.

      (Applause and speaking out of turn are generally prohibited at hearings. The attorneys for both sides had established ground rules at the initial Sept. 1 meeting. While acknowledging citizens' sentiments, they had asked the audience to observe the public negotiations quietly, which was respected that evening.)

      By constantly referring to "supporters" and "opponents" of the Town Center project, the developer and selectmen have fostered the notion that town board actions are based on whether members like or dislike the project. But the HDC has responsibility under both local and state law to regulate construction in the Historic District. It can legally issue a "Certificate of Appropriateness" only if it believes proposed changes will maintain the 19th-century ambiance of the district. Although that is what the developer requested, the Commission judged early on that extensive new asphalt and traffic lights, as proposed, would not look 19th century.

      The Commission can allow changes anyway under a "Certificate of Hardship" if it believes that damaging the District is necessary to alleviate an economic hardship. That is the path they attempted to follow with the permit issued in early July 2009. They issued a Certificate of Hardship that would have allowed the road widening and traffic lights after the first phase (about 25 percent ) of the Town Center development was completed.

      Years ago, traffic studies were done showing that such road work would be necessary to deal with the traffic generated by a fully built Town Center project. But the developer subsequently decided to build the project in phases. The commissioners believed that road work needed to handle 100 percent of the project could not be equally necessary to handle only 25 percent of the project, and issued their certificate accordingly. And in fact Anthony DeLuca of Twenty Wayland indicated at the hearing that such an approach would have been perfectly acceptable to the developer. Why would we spend money on the roads before we had to, he asked.

      But the selectmen created the problem in 2008 by entering into a separate legal agreement with residents of Glezen Lane that at least part of the road work had to be done before the project started. They did not consult with or include the HDC before making that agreement, apparently believing the HDC has no say in road projects. The developers have in fact challenged the HDC's jurisdiction in court, and a judge has ruled against them twice. The Glezen Lane residents have offered to revisit the agreement, since it was based on a joint assumption that the entire project would be built in one phase, but the selectmen have shown no interest.

      The selectmen have broken the logjam by issuing a Certification on Aug. 4 that says, effectively, that the same road work that is required to deal with the traffic from a fully built out Town Center project is required to deal with the very beginning of construction. However this fits with common sense, it appears to carry the force of law because the selectmen are the traffic commission for the town. The HDC is therefore compelled to allow the damage to the Historic District, and at this point is simply seeking to confirm that at least the modest first phase of the project will in fact be built after the road work is done.

      -- Tom Sciacca


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      Wayland Voters Network
      Michael Short, Editor
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