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.
TOWN FILES MOTION
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
DEP APPROVES ADDITIONAL WASTEWATER DISCHARGE
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.