WVN #483: Will new Danforth agreement protect Town?
- Dear Wayland Voter,
Facing the prospect of a large housing project in adjacent Framingham that would affect traffic and the environment, a number of Wayland boards worked together to hammer out a settlement in 2005 providing a broad range of protections including $1.45 million for mitigation. Development plans have changed since then.
In response to the developer's pressure to reduce mitigation payments for a smaller project, Wayland has now agreed to give up nearly half of the money while putting in jeopardy most of the legal safeguards. The decision came on a 3-2 Board of Selectmen vote, taken without any evident consultation with those who crafted the 2005 deal.
What will ultimately be built, and how the town will be affected, is unknown. In any case the selectmen can't say they weren't warned: A resident and attorney who worked on the earlier deal told the Board before the vote that agreeing to certain wording would be giving away the store.
Also in this newsletter:
-- Flu vaccine update, particularly for parents and children.
-- Meeting calendar. Finance Committee Jan. 28 meeting agenda says "potential vote on the budget."
NEW DANFORTH PROJECT AGREEMENT SIGNED
Wayland Selectmen voted 3-2 on Jan. 22 to sign a Proposed Financial Settlement Modification from the Danforth Green developer that serves as a Memorandum of Understanding (MOU) agreeing to reduce the amount of the 2005 settlement agreement from $1.45 million to $760,000. The prior amount was originally intended to protect the Town of Wayland from a variety of impacts anticipated from the construction of housing at the former New England Sand & Gravel property at River Path and Old Connecticut Path, Framingham.
Without consulting other town boards that had participated in negotiating the original agreement, three selectmen ignored advice from several citizens and two Board colleagues to perform more due diligence.
A year ago, Roy MacDowell, Jr. first appeared before Wayland selectmen saying he was seeking to reduce costs for a smaller Danforth project (360, down from 525 housing units). In the intervening months, MacDowell acted to acquire land and began appearing at Framingham Planning Board meetings. In October MacDowell sent Wayland a letter seeking an MOU saying he needed more certainty about costs. The hearing for the smaller project did not begin until Dec. 20 where his attorney stated that the intent is to ultimately amend, not replace, the 2003 Framingham Special Permit.
The signed MOU commits the Board to sign a replacement settlement agreement once Framingham approves the project. Concerns about having protectivelanguage in place in the event MacDowell does not build the project went unheeded by the Wayland town administrator and three selectmen. As reported in WVN #481, the language in the upcoming second step document discussed on Jan. 14 called for entirely vacating the 2005 agreement.
MacDowell and his son were invited to comment during the Board's discussion of the proposed MOU, ostensibly to alleviate concerns.
(WayCAM's recording of the Selectmen's Jan. 22 discussion with MacDowell):
Fast forward to approximate elapsed time 00:55:25
Selectman Joe Nolan proceeded to counter public comment offered in recent weeks from citizens who experienced the original 2002-2003 public hearing for the larger project and Wayland's painstaking actions leading to the 2005 settlement.
Nolan has characterized citizen public comment as misinformation or misinterpretation. When he invited MacDowell to comment on citizen input that traffic signals at the West Plain Street//Old Conn Path (OCP) intersection were required by the 2003 Framingham Special Permit, the developer said it was "absolutely false" (approximate elapsed time 01:15:15).
Nolan added his interpretation concluding with "they never in any of their approvals said `you must signalize West Plain Street.'"
The public record indicates otherwise. Scroll down to page 10 of 21 in the 2003 Framingham Special Permit, Planned Unit Development Regulations, #8 Off-Site Traffic Improvements: "As referenced in the conditions of this Decision, specific off-site improvements are required......." http://www.framinghamma.gov/DocumentCenter/Home/View/1126
On Page 15 of the same document, Traffic/Parking Conditions: # 9: "The applicant shall complete the two phases of traffic improvements identified on Exhibit A." The first intersection listed on Exhibit A calls for West Plain Street/Old Conn Path to be signalized.
MacDowell shifted his comments from year 2003 to the present, describing individual Planning Board member comments about traffic mitigation during Framingham's Jan. 3 hearing. They included the Wayland intersection in that discussion because improvements at all OCP intersections must be coordinated.
MacDowell told Wayland selectmen that "frankly they'd be happy if we put it (the signal) in Framingham" without identifying who "they" are.
Jan. 3 Planning Board meeting minutes, however, show no such expression by Framingham officials or their traffic consultant. Scroll to page 2 to access Planning Board minutes archive, click on year 2013 to access link to 1/3/13 minutes:
The dollar value of signalizing the West Plain intersection had been posed as a question to Wayland selectmen after the Jan. 3 hearing discussion of traffic mitigation reached an impasse over a difference of $900,000. The detailed meeting minutes reveal how Framingham town officials were grappling withMacDowell's expectation to have the value of the Wayland intersection count towards his mitigation obligations in Framingham.
Posted meeting minutes and archived cable TV recordings of the Framingham hearing sessions are examples of the available public record that Wayland's town administrator and selectmen could have considered to get their facts straight if they had heeded the citizen advice they received during public comment.
When prompted by Nolan to speak about the status of the hazardous waste cleanup on his property, MacDowell offered to provide reports to the Board (also available on the Department of Environmental Protection website under RTN 3-0629), but neither he nor his son could remember the name of the most troublesome contaminant.
MacDowell described annual groundwater monitoring for what "could be 20 to 30 wells," how the plume concentrations are diminishing over time, and the Air Force's attitude is that it "will go away in the next few years." The hazmat disposal site is a rectangle of about 27.5 acres in the middle of his property where there are only 8 monitoring wells tested annually for PCE (tetrachloroethene) and other volatile organic compounds. The most recent data in 2012 show that concentrations increased slightly in 3 of those wells compared with 2011. The amounts are low, and the reports state that concentrations do not decrease linearly and are subject to annual fluctuations.
The annual reports from the Air Force's Licensed Site Professional (LSP) have included no prediction for when the PCE will attenuate enough for the cleanup to achieve a Class A or B RAO (Response Action Outcome) or until there is a level of No Significant Risk. The Class C RAO was filed for the site in 2008 and remains at that classification.
Need for Environmental Expert Discounted
Nolan dismissed the need for Wayland to have mitigation dollars for an LSP to look out for our nearby water supply. The developer has an LSP, the polluter has one, and Framingham has one. MacDowell said "we are LSP'd to death." Perhaps Nolan forgets that to protect the town's interests during the Raytheon property cleanup, Wayland has an LSP, Raytheon has an LSP and Twenty Wayland has an LSP for the construction of the Town Center project. With the construction of Wayland's new wastewater plant on the same property, instead of tapping the town's LSP, the commission hired yet another LSP.
It's not the number of LSPs but rather what they are asked to do and whose interests they protect that matter. Had the selectmen been able to ask their questions of the individuals who worked on the 2005 agreement, they could have learned more about the rationale behind those dollar allocations. For more information about what LSPs are and what they do: http://www.mass.gov/lsp/files/guide.htm
Selectman Nolan refers often to his "involvement" in these matters a decade ago as a road commissioner. The public record shows, however, that he was not the road commission's representative to the negotiations held with selectmen in executive session.
Selectman Doug Leard was a selectman at the time of the 2003-2005 litigation settlement negotiations. He described how the collaborative process included other town committees (e.g. water, highway, public safety, conservation). Leard repeatedly said he was not comfortable acting on the MOU without including the others, that they were entitled to have a voice.
Selectman Steve Correia noted that more than 80 acres of land along the Sudbury River would be devoted to conservation. The MOU language for the uses of those acres is not consistent, varying from conservation to open space to recreation. Nobody asked MacDowell how that conveyance would work or what recreation uses are contemplated. Some recreation uses could generate significant traffic and increase impacts to habitat. The money earmarked in 2005 for Wayland's abutting Pod Meadow conservation area management plan was dropped.
Town Administrator Role
When asked by Selectman John Bladon if the other boards had seen the MOU, Town Administrator Fred Turkington said "no," adding that he had not received any requests. Without an announcement or memo offering courtesy copies, how would other town officials know to ask? At several points during the discussion, Turkington attempted to characterize their missing interests.
Regarding the aquifer Wayland shares with Framingham's Birch Road wells, Turkington indicated that Wayland's wells in the area are inactive, leaving the impression that they were not so important. In fact there is only one inactive Meadowview well. He omitted mention of the Happy Hollow Wells, which also draw from the same aquifer and provide 50% of Wayland's drinking water during peak seasonal demand. Framingham has invested millions of dollars towards getting DEP permits to reactivate wells abutting the Danforth project to reduce dependency on the MWRA. Their goal has been to get approval to withdraw over 3 million gallons/day from our shared aquifer.
Money earmarked for wellhead protection and conservation ended up on the cutting room floor, with Turkington tasked with informing pertinent town boards and committees that the selectmen had $60,000 of discretionary funds left over in this new deal. Leard asked if that was enough money for Wayland to install the protective groundwater monitoring wells contemplated in the original agreement. Nobody had an answer.
Another missing party at the table was Wayland's legal counsel. Selectman Ed Collins suggested the Board consult with the special counsel who worked on the 2005 agreement before signing anything. Nobody seemed to know who that was. Town Counsel Mark Lanza was not present at selectmen meetings in recent weeks when the legal implications of what they were being asked to review and approve needed to be discussed. Instead, MacDowell disclosed that he had met with Wayland's attorney and proceeded to inform the board of Lanza's view of the MOU.
Protective Amendment Rejected
When Selectman Collins offered a protective amendment to the motion so the default would be to the 2005 settlement agreement in the event Danforth Green LLC does not build the project, MacDowell strongly objected and three selectmen voted against it. Town counsel's absence from this meeting made it impossible to verify various statements and legal interpretations about Wayland's exposure and rights as they were made by Nolan and Turkington during the discussion.
The MacDowells reminded the Board that they could go back to Framingham and start all over with a new special permit, implying that would render all prior mitigation agreements moot. There may be reasons why they cannot start over, or other risks not mentioned in doing so, not only because of the expense and time involved.
The Wayland officials who spent more than a year working on the 2005 negotiated settlement, aided by expert consultants and special legal counsel, were a committee formed by the vote of the 2003 Annual Town Meeting. They included the police chief, two selectmen, a citizen at large, and one representative each of the road commission, Conservation Commission, Planning Board and water commission.
Back in 2005, the negotiated settlement was signed by all five selectmen. The new modified document approved on Jan. 22, reviewed by town counsel for content and form, was signed only by Wayland Selectmen Chair John Bladon. Bladon asked the town administrator a jurisdictional question whether or not the Selectmen needed the approval of any other board to make this decision. Turkington responded "no." Leard and Collins cast the opposing votes.
Turkington contends the selectmen do not have to consult with anyone on this matter. This demeanor reflects the tenor of the current Wayland administration, a far cry from the more inclusive and transparent approach a decade ago when such collaboration resulted in a strong and protective agreement. By giving in to the developer's pressure to sign on the dotted line without adequate due diligence, the three selectmen and the town administrator may have abrogated their fiduciary responsibility to Town Meeting and the citizens of Wayland.
-- Linda Segal
FLU MIST UPDATE
The Wayland Health Department reports that a limited supply of flu mist is available for students.
For students still in need of yearly flu vaccination and able to receive intranasal vaccination:
Review the Flu Mist Informational Sheet and complete the Flu Mist Parental Consent Form and the Insurance Reimbursement Form and send it to your school nurse's office.
Questions: Contact your school, nurse or the Wayland Health Department at 508-358-3616.
For children or adults who need injectable flu vaccine, call the Wayland Health Department to be placed on contact list. Additional vaccine is expected next week.
Monday, Jan. 28:
Finance Committee, 7 p.m., agenda not posted on town website. Discussion of FY14 capital and operating budgets followed by potential vote on the budget
Audit Committee, 7 p.m.
Board of Health, 7:30 p.m.
ELVIS (Electronic Voting), 7:30 p.m.
Tuesday, Jan. 29:
School Committee, 8 a.m.(morning):
Economic Development Committee, 7 p.m.
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Wayland Voters Network
Michael Short, Editor