WVN #514: Selectmen hire legal help on $1.2M judgment
- Dear Wayland Voter,
The selectmen have hired a law firm to help the town deal with a $1.2 million judgment in a suit filed by the Town Center developer.
Superior Court documents show that decisions made as long ago as the late 1990s and reaffirmed by the town administrator in letters and meetings now bedevil today's town officials. The information also raises questions about the effectiveness of the town's legal defense.
Also in this newsletter: The lawsuit over wastewater discharge capacity complicates the work of the wastewater commission, and it isn't clear how much the developer will pay toward the cost of the new $5.6 million treatment plant.
SELECTMEN HIRE SPECIAL COUNSEL
After considering four law firms, the Board of Selectmen voted on July 16 to hire Mirick, O'Connell, DeMallie & Lougee, a Westborough firm of more than 60 attorneys and other professionals. John Mirick wrote that his firm is counsel to several towns and specializes in municipal law. Judge Dennis Curran's judgment set a deadline of Aug. 2 to take action against the June 11 jury decision.
Wayland Town Counsel Mark Lanza was outnumbered four to one by the developer's legal team as he defended the town and the wastewater commission against allegations of breaching a contract to supply a fixed amount of the town's wastewater disposal capacity.
Though a wastewater consultant and a commissioner provided expert testimony at the trial, much of the town's position was laid out in a 105-page sworn deposition given last November by Wayland's designated representative, Town Administrator Fred Turkington. In addition, Town Counsel Lanza had already agreed to facts laid out by opposing counsel in April 2012. http://www.wayland.ma.us/Pages/WaylandMA_BComm/Wastewater/Documents/2012-04-11%20Statement%20of%20Material%20Facts%20with%20Resp.pdf
Turkington, who came to Wayland in 2005, was asked by the plaintiff's lawyer during the deposition about a 1999 Memorandum of Agreement that was the basis of Twenty Wayland's suit: "Do you understand that the memorandum of agreement was ratified by town meeting? Answer: Yes."
In fact Town Meeting never ratified the 1999 agreement, was never asked to ratify it, and never authorized the selectmen to enter into a contract on this matter, according to the public record.
"Question: "Is it the case that the town does not contest the validity of this contract? Answer: That's my understanding."
"Question: Do you understand that Twenty Wayland, LLC is now the successor in interest to the Wayland Business Center, LLC with respect to the 1999 memorandum of agreement? Answer: That's my understanding."
The 1999 agreement with the Wayland Business Center contained no language about successors and assigns. Town Counsel was present with Turkington when he was deposed.
The deposition is posted at:
Parts highlighted in yellow were admitted into evidence at the trial on June 10 because Turkington did not appear in court to testify.
The town's defense was essentially that the Massachusetts Department of Environmental Protection could exercise discretion and allow enough wastewater discharge to satisfy the Town Center as well as dozens of other customers. Most of Turkington's technically detailed deposition was about disputes with Twenty Wayland over interpretations of allowable amounts of discharge, all based on the 1999 agreement.
From 1999 on, Turkington and other officials upheld the agreement.
At Tuesday's meeting of the selectmen and wastewater commission, Anette Lewis, an environmental attorney, former Planning Board associate member and long-term road commissioner, expressed her assessment of the wastewater litigation during public comment. She had opposed Wayland's acquiring the existing wastewater plant in 1998, fearing the town could be stuck with costs, even though the commission is an enterprise fund supported by user fees.
Lewis also asserted that the 1999 agreement was never a contract, was never authorized by town meeting, and wondered why the Town didn't contest that at the trial. She recommended switching completely to new counsel, leaving Lanza out of the matter. Lewis offered to share public documents she has amassed over the years on the wastewater topic with special counsel.
The public remains largely uninformed about the trial and information emerging since then placing burdensome specific performance requirements on the town and commission, Lewis said.
Twenty Wayland filed suit in November 2011 after months of threats. The complaint clearly asserted a breach of contract. The selectmen at that time were Tom Fay, Steve Correia, Joseph Nolan, John Bladon and Susan Pope. Correia and Nolan remain on the Board.
Relevant public documents are at:
http://www.waylandtransparency.com/wastewater.php and http://www.waylandtransparency.com/townside/wastewater.php
WayCam's recording of the July 16 joint meeting with the WWMDC is available at:
-- WVN Staff
CHARGES FOR NEW TREATMENT PLANT POSTPONED
The nearly 70 residential and business customers won't have to start paying betterment charges immediately for the new $5.6 million wastewater treatment plant at the Town Center. Until now, customers have been paying surcharges to help the Wastewater Management District Commission cover the cost of borrowing for the new plant. Those relatively modest surcharges have been supplemented by the commission's reserve funds.
The betterment charge is supposed to be calculated so that all who benefit from the new plant contribute their fair share of the cost. Betterment charges are attached to the property, so owners can deduct them from their taxes. Surcharges cannot be deducted. But once the betterment charges are assessed the property owner cannot leave the system.
That is no small matter for some residential customers, who might be ahead financially by converting to a private septic system.
The commissioners have been struggling with the formula for assessing the charges. Originally, the largest plant user, Twenty Wayland, had agreed to pay 70% of the cost of the new plant, with the remaining 30% spread over the other customers.
The Commission missed the deadline to set those betterment charges for a July 1 billing. The commissioners announced at their July 16 meeting that they will continue to assess surcharges in Fiscal 2014, delaying until next spring switching to betterment charges for FY15.
On April 1, the wastewater commission held a public hearing regarding FY14 sewer rates and betterment charges. http://www.wayland.ma.us/Pages/WaylandMA_BComm/Wastewater/FY2014-Rate-Hearing/FY2014BettermentTable.pdf
No final decisions were voted. Few plant customers realized that a chart had changed from earlier estimates, showing the Town Center developer paying only about 62% of the cost. How that reduction was calculated was not explained. The change would add over $600,000 to the amount absorbed by other customers.
The April chart also shows that betterment charges are expected to be almost twice the size of the surcharges. The cost of borrowing for the $5.6 million plant is over $7.5 million.
The commission says it is still setting up a new billing system. Customers have been added as more Town Center businesses open and Wayland Commons 40B condos on River Rock Way are connected. Now there are about 70.
One resident asked at the July 16 meeting if the commission's calculations will be affected by the outcome of Twenty Wayland's wastewater lawsuit. The commissioners said they hope the Department of Environmental Protection will approve releasing an additional 17,000 gallons per day of discharge capacity, implying that such news might help mitigate the financial damages.
A resident said plant users trying to leave the wastewater system are finding the process confusing and asked the commissioners how they feel about losing customers. Freeing some plant capacity for Twenty Wayland might be an incentive for the commission to support such efforts. Commissioner Sam Potter outlined the DEP's complex rules. If customers portray reconnecting to their abandoned septic system as a "repair," Potter says, officials are not supposed to block the initiative. But if customers need a whole new system, it's more complicated. In either case, they need Board of Health approval.
Anette Lewis, an attorney and former town official, said there should be more leeway because Wayland's wastewater statute is different from any other in the state because participation in Wayland's system is voluntary. The delay in assessing betterment charges provides customers time to explore their options.
The commission reported making progress on efforts to get a discharge permit from the DEP for a supplementary groundwater facility at the Town Building ball field designed to meet Twenty Wayland's capacity demands. In January, the WWMDC had applied for the wrong permit (general rather than individual) despite advice from the DEP.
The WWMDC's engineering consultant has prepared a Scope of Work for the Individual Permit, hoping for positive feedback from DEP before submitting it. But Wayland Town Meeting has yet to authorize funding or siting this unusual project. DEP's correspondence implies the expectation that the new facility would be built, but Potter still says commissioners hope they won't have to build it; that would depend on whether actual flows risk exceeding permit limits.
The selectmen's development agreement calls for Twenty Wayland to issue a gift payment to the Town once the new plant is completed. It has been fully operational since last November. The developer has not made the $175,000 payment, though Wayland has met the agreement's conditions.
One more problem for the commission: more than a year after a contractor reported seeing excessive groundwater flowing into the system at the Public Safety Building, the problem hasn't been fixed.
The commissioners expect to meet next Tuesday evening with selectmen and new special legal counsel in executive session. The next monthly meeting is expected to be Aug. 7. A vacancy remains on the three-member commission. Anyone interested in serving should contact the selectmen's office. selectmen@...
WayCAM's recording of the July 16 wastewater meeting is at:
http://waycamtv.pegcentral.com/player.php?video=03b9abce1ed3f6abb467e5e199d12049 Fast forward to 00:20:00.
-- Linda Segal
Unless otherwise noted, meetings take place in Wayland Town Building. Click on the dates on the meeting calendar for links to posted agendas
Monday, July 22
Historical Commission, 10 a.m. (MORNING), Multiple meeting locations, including 2 site visits
Selectmen, 7 p.m.
Board of Health, 7 p.m.
School Committee, 7 p.m.
Board of Public Works, 7 p.m.
Tuesday, July 23
Economic Development Committee, 8:30 a.m. two new housing proposals (JCHE and Brendon Homes)
Selectmen, 7 p.m. with WWMDC and special legal counsel regarding town center litigation
Wastewater Management District Commission, 7 p.m., with selectmen
Zoning Board of Appeals, 8:20 p.m.
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Wayland Voters Network
Michael Short, Editor