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Town will take over Walpole Park South pump station

September 27, 2013

The Walpole Sewer and Water Commission voted this week to take over the sewer pump station at Walpole Park South – the subject of continuing controversy since last year, and an issue that is expected to remain a significant one going into Fall Town Meeting next month.

James P. Taylor and Patrick Fasanello were the only two Sewer and Water Commissioners on the five-member board to vote against the measure in a 3-2 vote Monday night that was closely watched by many local political observers. Commission Chairman John Spillane was joined by Roger Turner and Kenneth Fettig in the majority.

Under state law, the Board of Selectmen and the Sewer and Water Commission each has the authority to acquire any land, rights of ways or easements, including pump station land, on private property that is necessary for maintaining a sewer system. If one of those two boards exercises that authority, the other board has no choice but to go along with the vote. Town Meeting, the town’s legislative body, has no authority to overrule a vote in that case.

RTMs, however, still have the authority, through their budget-setting powers, to control the Sewer and Water Commission’s budget, and they could potentially reduce the Commission’s budget in an attempt to prevent a pump station acquisition or to send a message that Town Meeting disagreed with the Commission’s decision.

The warrant for the Fall Town Meeting, scheduled to start October 21, will include three articles related to Walpole Park South. One of those articles is for acceptance of the street as a public way at Walpole Park South, while the other two  ask for Town Meeting authorization to take over the pump station and related infrastructure. Even if Town Meeting Representatives vote down the pump station articles, their vote is essentially meaningless.

This week’s Sewer and Water Commission vote followed months of uncertainty at Town Hall over whether Town Meeting had any power in the acquisition, and confusion about several previous votes going back to 2012 that the Commission had taken on the issue.

In February 2012, the Commission unanimously voted 4-0 not to take the WPS pump station. Fettig did not attend the meeting, and Kevin Muti was on the Board instead of Spillane. Turner opposed it at the time because he did not have enough information about its condition and wanted time to consider it.

At the Spring 2013 Annual Town Meeting, RTMs were asked to vote on an article to take over the street at Walpole Park South as a public way. Muti, along with other Commissioners, expressed concern at that time about the town taking over the pump station. RTMs eventually voted to send the article back to Town Hall for further review, after it became evident that town officials had not consulted Sewer and Water Commissioners and there were still other issues to be addressed with the street acceptance issue.

Muti, a consistent outspoken opponent of taking over the pump station, retired from the Commission in the June election, and was replaced by Spillane, who had not taken any public position on the issue during his campaign.

Shortly after the election, Spillane urged the Commission to take over the pump station, even though WPS representatives had told town officials and the Commission that they were amenable to keeping the pump station private considering the Commission’s apparent previous concerns.

With Spillane, the Commission voted on July 8 to recommend favorable action on a Fall Town Meeting article that would authorize Selectmen to acquire the pump station. All four Commissioners who were present, including Taylor, who himself had been a staunch opponent of the acquisition, voted to recommend favorable action. Fasanello, also a staunch opponent, was out-of-town during the summer and did not attend the meeting.

The Commission’s favorable vote on the Town Meeting article authorizing the acquisition was contingent on the Walpole Park South owners agreeing to certain conditions, including plans showing proper easements and sufficient space to access the station, a full inspection of the station, and an escrow account for repair or replacement provided by the owners.

In August, the Commission voted whether or not to reconsider the July 8 vote, with Fasanello back from vacation. Fasanello and Spillane voted to reconsider, but were on the losing side of a 3-2 vote.

Taylor later stated that he had made a mistake in the vote, and had wanted to vote in favor of reconsideration.

At the time of the July vote, Commissioners were unaware that Town Meeting actually had no legal say in the process, and they did not know that their Commission actually had the authority to take it over without Town Meeting’s approval. They learned this only after they consulted Town Counsel in August. At that point, the Commissioners were under the impression that the July 8 vote constituted a vote to take over the pump station.

Earlier this month, Town Counsel advised the Commission that their July 8 vote was only to recommend favorable action on the Town Meeting article, and that it was not a vote to take over the pump station. Counsel also stated that the Commission was allowed to reconsider any previous vote against taking the pump station, such as the 2012 vote, at any time up until a vote to take it over.

And so, this week’s vote finally made it official that the town will take over the pump station. Even so, Town Administrator Michael Boynton told Selectmen at their meeting Tuesday night that he sent more questions to the town’s legal counsel regarding the issue, including what the next steps are now that the vote was taken.

Even though Selectmen also have the authority to take over the pump station, Selectmen never took a vote on whether to take it over.

Part of the confusion from town officials over the issue, and what role the Sewer and Water Commission has, may stem from the fact that the town rarely takes over pump stations, and Walpole Park South, in particular, has been a point of contention for many town politicians, past and present, ever since it was first built in 1986.

Walpole Park South, which is located on top of the town’s aquifer in an area 3 primary recharge area, was built by the late J.D. Murphy, a prominent real estate developer in Walpole who held some political positions in town. Murphy’s family still owns the property.

The subdivision’s construction was initially rejected by the Walpole Planning Board, and was opposed by the Board of Health and the Conservation Commission who each had concerns about its location in a sensitive aquifer area. The construction was ultimately approved by court order, and, ever since, the development has faced other legal suits, charges of unethical actions in town government, and a litany of other issues.

When officials put an article on the Spring Town Meeting warrant to take over the street at Walpole Park South as a public way, they initially claimed that there was an agreement dating from the subdivision’s creation that indicated the town would eventually accept the street. They were unable, however, to provide any evidence of this agreement.

That said, it is common for industrial subdivisions, as with the Walpole Industrial Park on Route 1A, to see their roads become public ways.

The street acceptance, which is only under the purview of Town Meeting Representatives, will come up again at the Fall Town Meeting.

Turner and Spillane favored taking over the pump station on Monday evening, because they argued it was important for the town to have direct control of a pump station that was on top of the town’s aquifer. WPS representatives had also agreed to create an escrow account for repair or replacement of the pump station.

In 2012, when Walpole Park South representatives came to the Commission asking for the pump station to be taken over, engineer Dan Merrikin of Merrikin Engineering, representing WPS, said the pump station was originally designed to be a “town” pump station and was built with the idea that the town would eventually take it over. There was never actually anything in writing that requires the town to take over the pump station, though.

Despite the pump station being close to 30 years old, Merrikin told the Commission that the facility was privately inspected and reported to be in good condition.

Fasanello has consistently opposed taking it over in part because he was concerned about the precedent that would be set. He noted Monday that there are two pump stations at the Preserve apartment complex across Route 1 from Walpole Park South, neither of which are owned or controlled by the town. Those pump stations, too, are located on the aquifer.

Fasanello also pointed out that the costs of maintaining the pump station will be borne by Walpole sewer ratepayers, with no major advantage to them or to the town.

Even if a pump station remains in private hands, the town still has the ability to repair it at any time in an emergency situation.

Taylor echoed Fasanello’s concerns, saying he was concerned about the precedent being set from taking over a private pump station and whether it might open the town up to lawsuits from other developers who want the town to take over their pump stations too.

Selectman Cliff Snuffer attended Monday’s meeting, as did former Selectman Bill Hamilton, who has been a strong opponent of taking over the pump station. Donnell Murphy, owner of Walpole Park South, also attended, as did his attorney Phil Macchi, and Merrikin.

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