WVN #507: DEVELOPER WINS $1 MILLION JUDGMENT AGAINST WAYLAND
- Dear Wayland Voter,
The path to the Town Center commercial-residential development on Route 20 wasn't easy.
Voters rejected the first proposal. Selectmen squabbled with other town boards. The developer pulled out, then returned when demands were met. Promises on affordable housing were scaled back. The developer sued the Historic District Commission over neighborhood protections and then in November 2011 sued over wastewater discharge capacity.
Now, after a two-day Superior Court trial, Wayland and its Wastewater Commission face a nearly $1 million judgment. If the
decision stands, wastewater customers and/or the taxpayers would be liable.
JURY DELIVERS SWIFT DECISION AGAINST WAYLAND
It took the jury this afternoon less than two hours to deliver its 14-0 verdict in favor of Twenty Wayland LLC's claim of breach of contract against the Town of Wayland and the Wayland Wastewater Management District Commission, and it awarded the Town Center developer damages totaling $989,774.
The developer's attorney referred repeatedly to the 1999 Memorandum of Agreement (MOA) between the former owner of the property, the Wayland Business Center, and the Town and Wastewater Commission: http://www.wayland.ma.us/Pages/WaylandMA_BComm/Wastewater/PermanentDocuments/MemorandumOfAgreement1999.pdf
The developer successfully argued that the Town and Commission failed to meet the commitments expressed in the underlined portion on page 3 specifying that the developer would be allowed 45,000 gallons per day of sewage treatment capacity. Standard language often seen at the end of a contract saying it applies to successors and assigns was not included in this agreement nor in the supplemental agreement a month later.
Even though the Agreement didn't specifically apply to the succeeding developer, the commitment for 45,000 gallons per day had been reaffirmed in writing with Twenty Wayland by town officials several times since then.
One trial exhibit was a selectmen's column in the Wayland Town Crier:
The plaintiff argued that treatment plant allocations awarded to other customers over time exceeded their proportional share of the total allowed in order to stay in compliance with state and federal discharge permits. One such decision mentioned in court was allowing the Wayland Commons 40B condo project to connect to the plant; that project paid $600,000 to the Commission for an allocation of 7,200 gallons per day.
When a new $5.6 million treatment plant was built, largely to accommodate the Town Center, the Department of Environmental Protection (DEP) required the developer to apply for a discharge permit. The DEP issued a phased permit in June 2011, initially granting the developer 28,000 gallons per day and saying actual flows would later determine whether the remaining 17,000 gallons per day could be released without exceeding federal
DEP testified that it is required to abide by its regulations. The Town's expert witness said that in his experience actual flows to treatment plants usually amount to just 50-60% of what is calculated for permits. The regulations are acknowledged to be protective and conservative and take into account possible anomalies and occasional peak flows. The Town and Commission have been exploring several possible discharge alternatives with DEP.
The DEP was concerned about Wayland's allocation practices as well as the condition of the old plant and its ability to process all wastes such as phosphorus, metals and nitrogen without polluting the Sudbury River. The fact that the Commission has since built a new plant designed to be able to process peak flows in excess of 100,000 gallons per day was part of trial testimony.
The Towns' two witnesses were the Commission's engineer, Ian Catlow of Tighe & Bond, and Wastewater Commission Chairman Fred Knight. The developer's four witnesses included Twenty Wayland's principal Anthony DeLuca and project manager Frank Dougherty, as well as DEP's wastewater management section chief Kevin Brander and a construction cost estimator whose testimony was used to support damage claims. The developer ultimately claimed just over $1.9 million in damages, which the jury pared down. Testimony lasted a day and a half.
Twenty Wayland claimed it was damaged by not being provided a DEP discharge permit for the full 45,000 gallons per day in 2011, which it said prevented moving forward on the residential portion of the mixed-use project at a time when the market was in its favor. Construction cost increases, carrying costs and interest were among factors in calculating damages. The developer also prevailed in saying it was overcharged annual fees from the time it acquired the property in 2005 until it began sending sewage to the plant in November 2012 when the Stop & Shop market opened.
The residential portion of the property was described as 88 units shown in approved project plans. The fact that there is a different developer (Brendon Homes) with a purchase and sale agreement to acquire that portion of the property to build 42 market rate condos was brought to
light by Wayland Town Counsel Mark Lanza. The Planning Board's public hearing for site plan approval on the new housing proposal is scheduled for June 18.
The Wastewater Commission's meeting agenda for June 12 includes an executive (non-public) session. http://www.wayland.ma.us/Pages/WaylandMA_MeetingsCal/S01B1902A-01B19030.0/2013-06-12-WWMDCAgenda.pdf
The selectmen's meeting agenda for Thursday June 13 at 7:30 a.m. includes an executive session. http://www.wayland.ma.us/Pages/WaylandMA_MeetingsCal/S01B19FA8-01B19FA9.0/BOSAgenda06132013.pdf
It remains to be seen what procedural options town officials might choose to take.
As the town's 375 anniversary celebration approaches this weekend, with activities planned in the center and other parts of town, the developer's roadway improvements approved in 2009 for Wayland's Historic District are incomplete. Town Center project manager Frank Dougherty assured the Board of Public Works last year that the work would be completed in time for the celebration.
FINNERTY'S HEARING POSTPONED
The Planning Board canceled its June 11 meeting on plans for a CVS at the former Finnerty's restaurant site on Main Street. A meeting is now scheduled for June 18.
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Wayland Voters Network
Michael Short, Editor