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WVN #518: First step in fighting $1.2M judgment

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  • waylandvoters1
    Dear Wayland Voter, Wayland has taken its first step to contest a $1.2 million judgment in the lawsuit filed by the Town Center developer, Twenty Wayland.
    Message 1 of 1 , Aug 31, 2013
      Dear Wayland Voter,

      Wayland has taken its first step to contest a $1.2 million judgment in the lawsuit filed by the Town Center developer, Twenty Wayland.

      Coincidentally, the Department of Environmental Protection has just given permission for the town’s new wastewater treatment plant to discharge additional wastewater. Plant capacity was the basis of the developer’s suit. It isn’t yet clear whether the DEP decision will affect the case.

      Both stories are below.


      In a lengthy motion the town and its wastewater commission ask Middlesex Superior Court to do one of three things: modify the judgment, order a new trial or suspend the judgment altogether.

      The judgment followed a jury’s 14-0 verdict in June. The judge then added to damages decreed by the jury.

      The court now has in hand Wayland’s motion, Twenty Wayland’s reply and Wayland’s argument against the developer’s answer. The court could choose to order a hearing. If the town is unsatisfied with the court’s ultimate response, the next step would be the Appeals Court or the Supreme Judicial Court.

      The heart of the matter is the new $5.6-million wastewater treatment plant that the town built largely to meet Twenty Wayland’s needs. The developer sued after demanding the right to dispose of 45,000 gallons per day. The jury found that Wayland had breached its contract with the developer because only 28,000 had been allowed by the state Department of Environmental Protection (DEP).

      The DEP has now given Wayland permission to discharge an additional 8,391 gallons per day. This is significant, though not enough to meet the demand in the suit. Whether this could affect Wayland’s motion isn’t yet known. Part of Wayland’s trial defense was the argument that Wayland cannot be blamed for federal and state capacity limitations.

      At trial Wayland didn’t dispute the validity of a 1999 agreement with the former owner of the property for 45,000 gallons per day.  After the verdict some Wayland citizens expressed surprise at the town’s strategy. The agreement didn’t specify that it would necessarily apply to a new owner.

      Now Wayland’s 42-page filing on Aug. 28 claims that Twenty Wayland failed to establish the contract’s validity.

      Twenty Wayland’s response begins: “Incredibly, and disingenuously, defendants argue that Twenty Wayland failed to establish that the 1999 Memorandum of Agreement was a valid contract. Wow. How about the Agreed Facts (Trial Exhibit 1)?” Several of the agreed facts followed. Wayland officials repeatedly affirmed the agreement during the trial.

      But Wayland also presented other arguments, among them:

      -- The weight of the evidence didn’t support the verdict of breach of contract and ”the jury’s verdict must have been the result of a misunderstanding of the evidence.”

      -- The applicable six-year statute of limitations has expired.

      -- Excessive damages were awarded, based on speculation and miscalculated figures.

      --  Administrative remedies should have been pursued.

      -- There should be reasonable time to comply with the court’s order, which calls for meeting Twenty Wayland’s demands immediately.

      In its response Twenty Wayland argued:

      -- The Town’s motion was filed too late because the law sets a 10-day deadline after the judgment is filed. (To that Wayland responded that the court had allowed additional time.)

      -- The motion relies on evidence not introduced at the trial. (Wayland responded that it hadn’t argued about evidence but rather the absence of evidence.)

      -- The motion doesn’t meet the standard for nullifying a jury verdict: “It is a rare case when a court should overturn a jury verdict. Motions for new trials are generally appropriate only to prevent miscarriages of justice.”

      -- Wayland shouldn’t be given extra time to comply: “Defendants brought this result upon themselves by oversubscribing the treatment plant.” (There are now dozens of customers on the system.)

      You can read the motion and other post-trial documents at:

      -- Michael Short


      On Aug. 28 the Department of Environmental Protection  approved the discharge of up to another 8,391 gallons per day of Town Center wastewater into the Wayland Wastewater Management District Commission’s new treatment plant.  

      Related documents are posted here:

      That represents almost half the flow that had not been initially approved by the DEP as part of the June 7, 2011 sewer connection permit issued to Twenty Wayland, LLC.  

      In November 2010, when the developer applied for its permit, it wanted the full 45,000 gallons per day it believed it needed and was entitled to have.  The DEP had already indicated in a letter dated Oct. 21, 2010 that the full amount would not be approved.  At that time, it was not clear if actual flows from the yet-to-be-constructed Town Center would risk exceeding legal limits.  

      The DEP’s June 2011 permit contained phased provisions, with 28,000 gallons per day approved for Phase I of construction; the remaining 17,000  would not be released until the developer met specific criteria in Phase II to demonstrate that sufficient capacity exists at the treatment plant.

      In this week’s approval letter, the DEP stated that the developer’s April 2013 request for the remaining 17,000 gallons per day did not contain required technical information.  By August 2013, the WWMDC submitted updated water use data showing that actual use is significantly less than calculated predictions.

      The Town hopes to persuade the judge to add the DEP letter to the court docket.

      Status of WWMDC permit applications

      The Commission has been exploring groundwater discharge alternatives.  At its Aug. 30 meeting, the commission voted to withdraw its previous application for a General Permit filed last January with the DEP for a new groundwater discharge facility at the Town Building athletic field.  In its place, the WWMDC voted to file an application for the required “Individual Permit” for such a facility.  Tighe & Bond engineering consultant Ian Catlow presented the design work and application required by DEP’s regulations.  

      Another step taken by the Commission to help resolve the capacity dispute with the developer was to seek a federal permit renewal in early June that calls for increasing the wastewater capacity at the plant to 80,000 gallons per day.  The plant’s discharge empties into the Sudbury River, a federally designated Wild and Scenic River that is classified by the state as “moderately stressed,” so that approval is not a simple matter. Knowledgeable experts have opined to WVN that it is, in fact, unlikely.  Catlow, on the other hand, remains optimistic, saying he had constructive conversations with DEP to elicit the state agency’s support for the proposal.

      Catlow reported that he had checked with the Environmental Protection Agency on the status of that renewal.  The federal agency confirmed receipt, said it’s at the “bottom of the pile”  and that it was not likely to issue a new  permit in 2013. That delay is not uncommon, given environmental budget cutbacks at state and federal levels, and is likely to worsen as a result of the ongoing federal “sequester”.

      Excess Flow Problem

      Consultant Catlow provided an update about repairing the long-standing groundwater leak into the wastewater system in the area of the basement bathroom in the Public Safety Building.  The plan is to inject into the ground a pliable rubbery material that vendors believe would expand and surround the leaking connection.  Lower groundwater levels at this point in the season mean the illegal discharge is down from about 10,000 gallons per day to less than 1,000.  The WWMDC expects to issue a request for proposals to finally fix that problem.  

      Facilities Study

      In response to WWMDC questions, Facilities Director John Moynihan provided an update concerning possible scenarios for the municipal building site at the Town Center. While a May 2013 report has been posted on the town website, consultants have not yet presented findings to the voters who funded the assessment of existing facilities.  Moynihan said that a public forum may occur in September.

      One option Moynihan described to the commissioners calls for the existing Town Building to become the home of the Library, Council on Aging, some recreation and the Children’s Way pre-school.  The school administration offices would move to the current library building, and the municipal pad could become the site of town offices and meeting rooms.  It’s not clear yet how all wastewater needs would be accommodated.  Town Building was on the drawing board to hook up to the wastewater plant a decade ago.  The connection was designed but never constructed.  Taxpayers have been paying each year to maintain the discharge capacity of 3,000 gallons per day allocated to Town Building by the WWMDC.  

      Town Center Irrigation

      Catlow also commented on the efforts of two Board of Public Works members to help the Town Center developer find a creative way to be able to irrigate its landscape.  The property is in the Zone II for the town’s Baldwin wells, and there is a deed restriction on the retail portion of the property because of a long-term environmental cleanup by the former owner, Raytheon.  The Master Special Permit permits irrigation only until plantings are established.

      The proposed idea, favored by the DEP, is to reuse processed water from the wastewater plant.  Catlow said it should be possible but would cost well over $100,000 to refit the new plant and listed engineering features that would need to be added.

      One option would be for town officials to seek study funds if the selectmen decide to open a warrant for a fall special town meeting.  Nov. 20 is the most recently mentioned possible meeting date.  Given the status of the wastewater lawsuit, it is not clear how soon town officials would discuss funding such a solution with the developer.  There appears to be little appetite for the Town to pay for any portion of it.

      The next WWMDC meeting is scheduled for Wednesday, Sept. 18 at 7 p.m.  

      -- Linda Segal

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