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WVN #374: State backs selectmen in meeting law complaint

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  • waylandvoters1
    Dear Wayland Voter, The Massachusetts attorney general attorney has ruled in support of the Wayland selectmen in an Open Meeting Law complaint related to Town
    Message 1 of 1 , Oct 12, 2010
      Dear Wayland Voter,

      The Massachusetts attorney general attorney has ruled in support of the Wayland selectmen in an Open Meeting Law complaint related to Town Center litigation.

      Also in this newsletter:

      -- The Town Center developer has made a little progress in a permit application but faces a significant environmental requirement.

      -- Studies of Dudley Pond water quality are needed.

      -- A meeting on Ballot Question 2, free flu shots and household hazardous waste collection.


      The attorney general has upheld an earlier ruling by the Middlesex district attorney that allows the selectmen to meet in executive session to discuss litigation even when they aren't a party to the suit.

      In a Sept. 29 letter answering a complaint from attorney and former selectman George Harris, the chief of the attorney general's Government Bureau said that selectmen can meet in closed session to discuss litigation involving "an entity of the town." The state allows exceptions to the Open Meeting Law when public disclosure could endanger a town's litigating position.

      The broad interpretation of the law allowed the selectmen to shield discussions of the Wayland Historic District Commission (HDC) even from the Commission itself.

      Harris' complaint focused on two Board of Selectmen executive sessions in July 2010 to discuss a suit against the Commission filed in July 2009 by Twenty Wayland, developer of the proposed Town Center mixed-use project. The selectmen, who have worked closely with the developer for more than five years, denied legal counsel to the Commission and excluded it from executive sessions. The Commission obtained pro bono counsel and prevailed in procedural court rulings.

      After the developer recently showed interest in settling, the Commission held two public negotiation sessions and will meet again on Tuesday, Oct. 12 at 7:30 p.m. At the Sept. 30 reopened hearing for the Certificate of Hardship, at least two selectmen and the husband of the new selectmen-appointed HDC alternate member were observed applauding citizens' criticism of the Commission.

      Harris told the Wayland Town Crier that the attorney general's decision was "deficient" and "a great disappointment." The AG's and the DA's rulings didn't respond to citations of statutes and case law.

      The attorney general took over enforcement of the Open Meeting Law from district attorneys on July 1.

      -- Michael Short


      At the Sept. 30 meeting of the Conservation Commission, Twenty Wayland inched a little closer to a permit for the off-site (road widening) permit for the Town Center project.

      David Faist of CMG Environmental, the town's consultant, said that although the application was still organized in a confusing way, most of the required material was there. For example, some of the dates on the document were inconsistent, but this is considered a minor problem. In this second try for this permit, with three new commissioners and a brand-new Notice Of Intent (NOI) submitted in early July, so far most discussion has been about the completeness of the application.

      But one technical issue has surfaced. Because some of the riverfront area of Mill Brook will be destroyed by road-widening, compensatory environmental mitigation is demanded. Twenty Wayland proposed declaring for this purpose the already-agreed-upon ten acres of Conservation Restriction (CR) land in the western part of the project property near the Sudbury River. However, much of this land lies within the wetlands surrounding the Sudbury River, so it cannot be considered as mitigation. State law prohibits net filling of flood storage area because it causes flood waters to rise higher. Last spring Wayland experienced record flood levels.

      Frank Dougherty, project manager for Twenty Wayland, noted that the CR process had not yet been started since Twenty Wayland must have the permits before he can apply for the CR.

      Several issues have been cleared up since the last meeting. For example, a copy of the Operation and Maintenance plan for proposed stormwater structures has been given to the Department of Public Works, as requested. The developer's off-site roadway widening calls for several new stormwater basins on town-owned land east of the Public Safety Building and new devices such as oil-grit separators to be located on other parcels of town-owned land. Once installed the DPW must maintain them. CMG Environmental's peer review role for the commission includes evaluating engineering specifications to determine if the proposed devices and mitigation will work.

      Andy Irwin, Conservation Commission chair, asked for a complete package by the next meeting, Oct. 21, before the hearing could be closed. Dougherty assured him that he had a list of the items that were still missing and that these could be cleared up in a couple of weeks. The complete application must be in Conservation Commission office a business week before the next meeting. After the hearing is closed, the commissioners will deliberate about the conditions of the permit.

      The previous off-site NOI application from June 2008 still has not been withdrawn. Dougherty promised to follow up. A hearing to withdraw that first off-site NOI application (with DEP file number of 322-704) without prejudice also has been scheduled by the ConCom for Oct. 21.

      -- Betty Salzberg


      Wayland applied for but did not receive a $49,000 grant from the Massachusetts Department of Environmental Protection (DEP) to determine the TMDL (total maximum daily load) of phosphorus that Dudley Pond can receive while meeting water quality standards. This study would have been under the direction of DEP and Wayland's Surface Water Quality Committee (SWQC). SWQC plans to reapply in the next funding cycle.

      The EPA mandates that states do a TMDL analysis for water bodies such as Dudley Pond, which has been categorized at level 5 (most impaired) in a Massachusetts DEP report to the EPA, but DEP does not have enough money from EPA to fund all requests.

      Had SWQC obtained the grant, data would have been gathered and estimates made regarding the inflow of phosphorous from various sources within the Dudley Pond watershed. Nitrogen and phosphorus containing compounds stimulate the growth of algae, millfoil and other aquatic weeds in the Pond.

      Once the data are collected and estimates are prepared, SWQC members would have a scientific basis for making recommendations for reduction of phosphorus inflow. These could include requiring regular inspections and repair of all septic systems in the Dudley Pond watershed, construction of better stormwater runoff control, shared community septic systems on a large or small scale, and/or tie-ins to the MWRA sewer system in Natick.

      Although a number of stopgap measures such as hand-pulling of weeds, herbicide application, mechanical harvesting and pond circulators have been used in recent years to manage millfoil at Dudley Pond, nutrient sources past and present from the Pond watershed have continued to stimulate excessive plant growth. Toni Moores, co-chair of Wayland SWQC, says that short term solutions such as weed pulling and herbicides will be required in concert with a program to minimize nutrients entering the pond as a necessary long-term goal.

      An article proposed in the fall Town Meeting warrant may provide partial information. This article looks only at the town-owned parcels near Doran Road on the eastern side of the Pond and asks to determine feasibility of several proposed uses for those parcels, including affordable housing, conservation, recreation and shared septic facilities. Selectmen have proposed using a combination of Community Preservation funds and town free cash for funding the study with an estimated cost of $75,000. No mention of possible measurements (for example of phosphorous inflow from septic systems or from stormwater runoff) from the rest of the pond area is made in the article.

      Wayland obtained a grant of $35,000 from the Massachusetts Housing Partnership (MHP) for a feasibility study for this same area. This also might provide partial information about phosphorous inflow, but also only from the Doran Road area.

      Town officials have put the MHP study on hold. A neighborhood group, the Wayland Neighbors for Responsible Land Use (WN4RLU) said that the MHP feasibility study would be "tainted" since it was being made by a housing group and would not consider land-use options that did not include affordable housing.

      The plan is to make the new town-funded study first and then, only if housing is an option approved by a new advisory town-wide land-use committee, go ahead with the state-funded MHP study. In either case, further work beyond the two Doran Road studies may be needed to fully determine the TMDL for Dudley Pond.

      -- WVN Staff


      Thursday Oct. 14, 7 p.m. Senior Center, Wayland Town Building. "Information Meeting" on Ballot Question 2 on the Nov. 2 ballot, which would repeal the state's 40B affordable housing law. Sponsored by the League of Women Voters of Wayland, Weston and Sudbury; Wayland Housing Partnership and Wayland Housing Authority. (The published program includes speakers who oppose repeal of 40B, but no supporters. The LWV opposes repeal.)


      Seasonal flu clinics in the large hearing room of the Town Building offered by the Wayland Board of Health. No appointments necessary. Bring insurance information. You will not have a co-pay or balance due.

      Residents 65 and older (and those 19-64 with a high-risk condition such as asthma, diabetes, kidney disease): Tuesday Oct. 19 and Thursday Oct. 21, 1-3 p.m.; Wednesday Oct. 27, 3-7 p.m.

      Residents 6 months-18 years: Wednesday Oct. 20, 2-4 p.m.; Wednesday Oct. 27, 3-7 p.m.

      Healthy residents 19-64: Wednesday Oct. 27, 5-7 p.

      Pneumonia vaccine is also available at the clinics. For more information, check the website or call the Board of Health (358-3617):


      Wayland residents are urged to dispose of household hazardous waste safely at this free event sponsored by the Board of Health at the Route 20 former Septage Facility. For more information:

      The required pre-registration form explains what can and cannot be disposed of at this event:

      To dispose of pharmaceutical waste or old drugs/medicines, if you have a sticker for the transfer station/landfill, ask Supt. George Russell anytime about special containers for safe disposal.


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      Wayland Voters Network
      Michael Short, Editor
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