WVN #375: Settlement ends year-long Town Center delay
- Dear Wayland Voter,
The Town Center developer's lawsuit against the Wayland Historic District Commission stalled the mixed-use project by more than a year. A recent settlement is a major step, though Twenty Wayland still needs other permits before it can start building.
Rather than negotiating when the HDC issued a Certificate of Hardship on July 5, 2009, Twenty Wayland went to court. It lost procedural motions and finally settled with the HDC without adjudication of its contention that the Commission lacked authority over road widening in the Historic District. The certificate allowed the project to proceed, but permitted the road work only after the need for it was shown by the first phase of construction.
The settlement announced on Oct. 12 revises the certificate and gives the HDC some of the assurance it sought that something will be built at the 57-acre Route 20 site by Twenty Wayland or a succeeding developer: Road widening, which the HDC says will irretrievably change the character of the district, will begin only after half of the existing 410,000-square-foot office building on the site has been demolished.
The agreement also provides declarations of bank financing for the first phase of the Town Center -- 94,000 square feet. Original plans call for a development four times that size, including 100 condominium units. The only known potential tenant is Stop & Shop.
The settlement ends one of several developer-caused delays that have affected the project since it was proposed more than five years ago. Twenty Wayland's appeals delayed permitting by the Conservation Commission, which is still holding a hearing on off-site road work.
Twenty Wayland has talked for months about breaking ground this fall. While the project has been stalled, the Massachusetts retail economy has shown signs of coming back to life. In other municipalities developers have announced plans to revive stalled projects.
The chronology below indicates how things might have gone differently and shows how Wayland selectmen have used their power to help the developer at the expense of the HDC.
MEETINGS THIS WEEK
-- FIELD USE FORUM. Tuesday Oct. 19, 7 p.m., Senior Center. Recreation Commission will present its Field Use Master Plan study this Tuesday. The Board of Public Works will also attend along with the consultants who authored the study.
To facilitate public discussion, the commission has posted the town and school fields report on the town website: http://www.wayland.ma.us/Pages/WaylandMA_Recreation/forms/
-- TOWN CENTER hearing continues at the Conservation Commission Thursday, Oct. 21 at 9 p.m. The developer also seeks to withdraw its earlier June 2008 application.
-- SELECTMEN OFFICE HOURS, 7:15-8:15 a.m., Friday Oct. 22, Selectmen's meeting room. No appointment necessary.
-- BOARD OF SELECTMEN meets next on Thursday Oct. 28, at 7 p.m. The selectmen have posted their updated Policies and Procedures Manual on their webpage:
SETTLEMENT ENDS LONG DELAY
The Historic District Commission and Twenty Wayland, LLC on Oct. 12 inked terms of an agreement for judgment that settles the lawsuit the developer filed against the Commission in August 2009.
As part of the settlement, the HDC unanimously approved a revised Certificate of Hardship that allows road widening through the historic district of Routes 27, 20, and 126 to begin after half the footprint of the current office building is demolished and a complete application for a building permit for at least 94,000 square feet is submitted, and a letter of commitment is obtained from Bank of America to lend sufficient funds for at least that amount of construction.The HDC found the last condition had been fulfilled although the letter did include a caveat. The letter said the bank "is confident, provided that all necessary permits are received in a timely fashion, that we will be the construction lender and will fund sufficient dollars to complete the project in full."
The revised certificate becomes effective after the agreement for judgment is filed with the court and accepted by the judge. It will expire five years from the date of issuance of the original certificate, July 10, 2009, and the HDC will require an application for renewal or a new certificate.
The revised certificate may be appealed until Nov. 2.
The HDC also recommended that Twenty Wayland work with the town to "support the burying of wires" in the historic district during the road work that will occur. Essentially, the major intersections in the Wayland center will be under construction (again).
Although throughout the process Twenty Wayland has stated that the HDC was delaying construction, in fact the developer's suit against the HDC consumed more than a year.
In the end, no revised traffic estimates were ever presented for the proposed initial phase of 94,000 square feet, and the letter from the Bank of America only speaks to "the process of finalizing the underwriting for a construction loan for both the first and second phase of the Town Center project." The third phase was to be the residential condominiums. Twelve affordable apartments above retail stores are part of the plan for the second phase. Thus the project is quite different from that described when attendees at the May 2006 Special Town Meeting approved a Mixed Use Overlay District.
In understanding the chronology, it is helpful to know that Twenty Wayland was asserting until the spring of 2009 that it would build at the same time the entire 372,500 square feet.
JANUARY 17, 2008. The Planning Board voted to issue a Master Special Permit for the proposed Town Center project. Two appeals were filed because of traffic concerns, one by the Town of Sudbury and another by Glezen Lane residents. Selectmen settled with Sudbury fairly quickly, providing $50,000 towards a study for a traffic light at the Landham Road/Route 20 intersection.
FALL 2008. Without consulting the HDC, the Selectmen settled the suit filed by Glezen Lane residents. One of the conditions calls for the construction of a light at 126/27 and road widenings generally described in the February 2008 Final Environmental Impact Report prior to the issuance of any building permit at the "town center."
Prior to December 2008, HDC Chair Gretchen Schuler repeatedly asked Twenty Wayland when the HDC would receive an application from the developer.
JANUARY 2009. The Selectmen, acting as road commissioners, issued a traffic certification indicating the intersections "will become unsafe and dangerous," based on full build out to 372,500 square feet. In a letter to the HDC, the selectmen insisted the HDC had no authority over roads and its influence was limited to the appearance of items such as historic markers, sidewalks and the stoplight: "...the Board of Selectmen has determined that alterations and construction of structures within the road layout as approved by the Board of Road Commissioners within the Historic District are necessary for public safety to due to the dangerous conditions that will result from Town Center project-generated traffic if the improvements are not made. As you are aware, the Historic District Commission may not make a decision which prevents the foregoing improvements or alters their location, but may impose reasonable conditions as to their appearance. These structures include: traffic lights and control equipment; sidewalks and curbing; drainage structures; crosswalks; curb locations; and driveway modifications."
Notwithstanding the selectmen's assertion, the HDC survived two challenges to its jurisdiction in the Twenty Wayland suit.
Twenty Wayland applied to the HDC in January 2009, then withdrew its application, then filed a new one in February 2009 seeking to widen the roads through the district.
In spring 2009, Twenty Wayland began discussing phased construction.
Interestingly, Town Counsel Mark Lanza opined at the April 2, 2009 meeting that if the HDC had granted the certificate, commissioners could have specified that the road widening be delayed until it was established that increased traffic justified it. But he later adhered to the selectmen's stance that all roadwork be done at the same time.
The HDC issued the Certificate of Hardship on July 5, 2009 that allowed road widening only after the first 94,000 square feet of new construction had occurred and a building permit had been filed for additional construction. The commission's thinking was that the first phase of building construction would not require such extensive alteration of the district, and the HDC did not want unneeded roadway construction to be done until it was certain that future project construction would occur and necessitate the changes. The major, and only named tenant to date is Stop and Shop.
In August 2009, Twenty Wayland filed the suit in Superior Court against the HDC that was settled Oct. 12, 2010. Thus the suit filed by Twenty Wayland consumed more than twice as much time as did the HDC's consideration of the initial application.
The HDC learned it was without legal representation on the Friday (Sept. 4, 2009) before Labor Day, and response to Twenty Wayland's suit was due the day after Labor Day. http://groups.yahoo.com/group/waylandvotersnetwork/message/375
HDC retained pro bono counsel of Barbara Buell. The court ruled in favor of the HDC in attempts by Twenty Wayland to declare Buell ineligible, which would have meant no defense, and later to seek summary judgment against the HDC.
In February 2010, the Selectmen issued a traffic certification that cited the area would be safer with a traffic light at 27/126 intersection (near the Library).
August, 2010, the Board of Selectmen played its trump card of public safety in a "certification," on a piece of paper lacking letterhead, and never discussed in its public meetings, signed by the Fire and Police chiefs and Steven Correia, Board of Selectmen chair. This document appeared in the hands of Twenty Wayland representatives, and was not in any viewable published correspondence in the selectmen's office.
The certification states: "The additional traffic will create an unsafe and dangerous condition beginning with the construction of buildings in the proposed `Wayland Town Center' project and continue when retail tenants begin to occupy the buildings in the project and customers patronize the retail and office space to be constructed." ."the failure to undertake the traffic safety improvements as designed until after occupancy of some or the entire project would be inconsistent with public safety."
This certification was the trump card because Wayland Local Historic District Bylaw 196-107.5 states that "[n]othing in this bylaw shall be .. construed to prevent the meeting of requirements certified by a duly authorized public officer to be necessary for public safety because of an unsafe or dangerous condition "
The certification states that all of the same changes necessary to deal with the 372,500 square foot completed project are required to deal with the 94,000 square foot first phase, and indeed with construction traffic at the very beginning of the project: "It is our conclusion that each element of the design of these improvements is necessary to address our traffic safety concern. We believe that omission or deferral of any element of the designed improvements would be inconsistent with public safety."
A key player in the Glezen Lane suit indicated to the selectmen a willingness to explore alternatives, but the Selectmen would not pursue this possibility, thus nixing any chance of adjusting roads as the volume of traffic dictated.
Although Twenty Wayland changed its plans to include phasing, it told the HDC in spring 2009 that it refused to discuss amending its plans with Mass. Highway and state environmental officials that called for doing all the road widening at once. Without seeking an advisory opinion from the state as to whether phasing would trigger reopening its March 2008 environmental approval, Twenty Wayland's claims that amending its plans would cause up to 18 months of permitting delays were never substantiated.
Twenty Wayland would not provide traffic estimates for the smaller size. It has argued that road widening is a benefit to the town. However, wider roads are also likely to increase the sale value of the developer's property, with permits, even if Twenty Wayland sells before constructing any buildings. And, regardless of the proposed widening, traffic will still pile up on Route 27 at Five Paths, and at Sudbury and Weston lights to the west and east.
Much of the revised Certificate of Hardship specifies measures to be taken to protect historic milemarkers, granite guide posts, stone walls and fences during construction and their relocation.
The Sept. 30, 2010 and Oct. 12, 2010 HDC deliberations resulting in the settlement of the suit may be viewed at WayCAM Video on Demand:
WVN has written extensively on the HDC and Twenty Wayland. Go to
and search for HDC. Some articles are:
-- WVN Staff