Published in the July 19, 2017 edition

By MAUREEN DOHERTY

LYNNFIELD —The Board of Selectmen held a special meeting Monday morning during which a majority of the board voted to amend the MWRA Supplemental Sewer Agreement governing the MarketStreet Lynnfield sewer connection between the development, the town of Wakefield and the MWRA.

At issue for the Lynnfield Board of Selectmen was the inclusion in the amendment of the 2013 Wakefield Zoning Board of Appeals (ZBA) decision which prohibits all tenants of MarketStreet Lynnfield from ever advertising the Audubon Road back entrance to the mall via Exit 42 off Rte. 128 in Wakefield. This agreement had been reached in exchange for a variance granted to MarketStreet for a free-standing sign on Audubon Road “related to the uses on the property and neighboring properties.”

Conditions in this Wakefield ZBA variance further direct MarketStreet to exclusively advertise Walnut Street in Lynnfield (Exit 43 off Rte. Rte. 128) for all access and egress to the mall to all patrons and employees, as well as in all promotional materials, including billboards, state highway signs, websites and all references made in print, radio or TV ads; requires MarketStreet to make a “good faith” effort to ensure that GPS and online mapping services direct users only to Exit 43; limits all deliveries to between 6 a.m. and 9 p.m. at Exit 42; and requires MarketStreet to provide an annual written notice to all tenants of these conditions.

The variance also requires that delivery and service vehicles “shall not be restricted” from using Exit 43/Walnut Street “at any time” during the stated delivery hours. Similarly, the variance does not restrict “patrons, customers, residents or visitors” from using Exit 42/Audubon Road as a point of access/egress to MarketStreet.

The issue was first raised at the board’s July 10 meeting when the “amended and restated sewer agreement and MWRA supplemental sewer agreement,” as approved by the Wakefield Board of Selectmen and signed off by National Development, (the developers of MarketStreet Lynnfield) was presented to the Lynnfield Board of Selectmen for its endorsement.

The Wakefield Board of Selectmen’s amended agreement outlines the increased payments MarketStreet is required to make to Wakefield and the MWRA to cover the increased daily sewer flows into the MWRA sewer system, via Wakefield, that were not anticipated when the original agreement was made. These flows were originally projected to be 76,350 gallons per day but the actual daily sewage flow is currently 97,643 g.p.d. based on 370,645 square feet of retail/office/restaurant uses, 180 residential apartments and the LIFE village for senior citizens. MarketStreet is approved for a total of 475,000 sq. ft. of retail/office/restaurant uses.

Selectman Dick Dalton questioned why the town was being requested to sign off on a contractual agreement when it wasn’t a party to the negotiations and also questioned the necessity of the inclusion of the Wakefield ZBA variance.

Selectman Phil Crawford also wanted to be reassured that Lynnfield would not inherit any financial liability if MarketStreet or a future successor failed to pay the MWRA and the town of Wakefield the bills related to its sewer connection through Wakefield and into the MWRA sewer system.

The board opted to hold off on its endorsement until town counsel was consulted or these questions were answered. Town Administrator Jim Boudreau stated that Lynnfield was involved because it was a party to the original development agreement.

At Monday’s selectmen’s meeting, Selectmen Chairman Chris Barrett asked Boudreau to “walk us through the agreement with MarketStreet and the town of Wakefield.”

Boudreau explained, “This revises the original sewer agreement to reflect the actual flow that is coming out of MarketStreet. It also amends the payments required to Wakefield based upon that flow. That is the majority of this agreement.”

“There is one section, Section 4 or paragraph 4 – which the Wakefield Board of Selectmen inserted – which reaffirms the Wakefield ZBA decision relative to signage and the use of the back exit, for lack of a better term, off MarketStreet. Aside from that, the rest of the agreement is fairly standard and straightforward,” Boudreau stated.

Barrett said he was “fine” with all the other parts of the MWRA agreement with one exception. “I know that back exit, and certainly the highway exit itself, has become a discussion on traffic flows around MarketStreet and seeing that included in this agreement has caused me pause. That is why we chose to put this off until a later date … to continue the discussion. I’d just like to ask my fellow selectmen for their input on my concern regarding this.”

Selectman Dick Dalton said he believes Boudreau portrayed the agreement correctly “with exception of Section 4 having to do with the Wakefield ZBA agreement. Quite frankly, I cannot, as an individual member of the board, sign that amendment if that language remains in there.”

Dalton continued, “I think for a number of reasons, and going back to the original agreement, this amendment was intended to adjust… the updated flows, both on the sewage and water side, and to adjust billing to the appropriate level. That was the sole purpose of the agreement and now throwing in a provision, we would be, in my mind, affirming a ZBA ruling from another municipality that impacts a business in our town. I think it’s completely inappropriate, and at the appropriate time, I am going to make a motion to approve it as presented but with the deletion of that condition.”

Selectman Phil Crawford stated, “My concern originally on this was whether or not the town of Lynnfield would be taking on any financial liability by signing this, particularly if MarketStreet did not make the payments that the agreement calls for. After speaking with town counsel and the town administrator, and going through the agreement in more detail and also the prior agreement, I (have) been assured that there’s no financial obligation on the town of Lynnfield. It’s part of our original development agreement we would be part of these agreements between Wakefield and MarketStreet” to keep the town informed of decisions that affected MarketStreet.

Crawford reiterated that he was satisfied that the town would assume no financial obligation by signing off on this agreement. “We did agree in the original development agreement that we would affirm what is being done even though we are not a party of that financial arrangement,” he added.

Signage affirmation does not affect agreement

Crawford stated that he believes that the “affirmation of the Audubon Road signage,” while unnecessary, does not affect the agreement. “Wakefield Board of Selectmen chose to put it in there just to reaffirm an agreement that already exists. It doesn’t change that agreement. It doesn’t affect the town of Lynnfield or the agreement that is in front of us at all. It is something they chose to have in there to make an emphasis and bring back to light that agreement is in place,” he said.

Crawford added, “It is my opinion to not sign this today is hurting the development and the work being done by MarketStreet. My gauge on whether something is good for the town of Lynnfield, whether it affects the town of Lynnfield, and whether or not it is in the best interest of town of Lynnfield is usually my criteria, and that does not affect the town of Lynnfield at all so I don’t have a problem with it. I have no problem signing this agreement in the form that it is today,” Crawford said.

Barrett said to Crawford, “I think it is not reaffirming the agreement that the town of Lynnfield originally had regarding MarketStreet signage. This is a decision that was made with a permit on the Wakefield side.” Barrett added that he does not believe it is “proper” to include the Audubon Road signage agreement “in an MWRA revision.”

“I want to make sure MarketStreet is a success. I also want to make sure that we do our due diligence,” Barrett said, adding, “The MarketStreet Advisory Committee is starting to discuss signage around MarketStreet so I don’t want to do anything as a selectman right now until I have complete confidence that I’m doing the right thing.

“Since I am good friends with the town of Wakefield, if we recommend to them to remove this from the agreement, then we sign it, I think that would be the proper thing to do, to give them that option knowing that this has caused us pause,” Barrett said.

A different approach

Dalton responded that he would take a different approach than either of his fellow selectmen.

“We can leave here this morning with a signed document, so that we are in no way making it more difficult on MarketStreet and National Development, but on the other hand, fully comply with the provisions in the agreement, where the town of Lynnfield has said that we will cooperate with the town of Wakefield, we are doing it,” Dalton said, in recommending striking out “that language, and sign what was always intended to be in the agreement without the frivolous language.”

Boudreau told the board that after he spoke with Wakefield Town Administrator Stephen Maio last week, at the request of Dalton, he learned that their counterparts in Wakefield are not interested in revising this agreement. Boudreau said Maio, who was on vacation when he contacted him, “informed me that Wakefield will not agree to take this out of the agreement, so I am not sure sending it back and asking that is going to do anything.”

“I don’t think Steve (Maio) merely saying that should change what we think is the appropriate action this board should take,” Dalton said. “We will fulfill our obligation to react timely. We called a special meeting and we’ve come out on a morning when we typically don’t meet. I think we are being very responsive. If they see fit to make an issue with this then so be it,” he added.

A circular argument

Boudreau explained that the inclusion of the Wakefield ZBA variance decision in the revised MWRA agreement “has nothing to do with it being binding at this point. It is binding on us because the town of Lynnfield did not appeal the ZBA decision back when Wakefield issued the original decision with this language in it. That is what is recorded at the Land Court or the Registry of Deeds. That is what is binding on us, the ZBA decision. It doesn’t change that fact. If it is in here or not, we cannot go to put up that signage without going back to the Wakefield ZBA.”

Dalton responded, “If they have an outstanding, valid decision from their ZBA it speaks for itself and there is no need for it to be within this amendment. This amendment is supposed to deal only with usage and billing, nothing more.”

“I don’t disagree with you, but we’ve had this conversation,” Boudreau told Dalton. “We’re in a circular argument where it doesn’t need to be in here, but it being in here doesn’t make a difference one way or the other because it is legally binding in the other documents.”

Barrett said, “But as a Board of Selectmen we would be voting on it and affirming the decision by including that in the agreement and through our signature and our vote.”

Boudreau reiterated, “Again, the town of Lynnfield affirmed that decision when they didn’t appeal the original Zoning Board of Appeals decision from the town of Wakefield. That’s when the town of Lynnfield said ‘we’re okay with that being a condition.’”

Boudreau explained that the board needed to make a decision on this matter otherwise MarketStreet may have a case against the town for “not cooperating because they’ve asked us to sign this and asked for our cooperation and they could ask the court to enforce it,” although he added “no penalties” would result.

“After reading the document I feel completely comfortable that if we execute the document this morning with that provision stricken, we are fully cooperating with MarketStreet and National Development,” Dalton said, therefore, “rather than continuing the circular argument, I move that the board vote to ratify the first amendment to the amended and re-stated MWRA supplemental sewer agreement, as presented, except amendment number 4 be stricken from the document prior to execution.”

The motion was seconded by Barrett and it passed by a 2-1 vote with Crawford opposed.