Appeal Report Asks Petitioners to Clarify Concerns, Negotiate with Town

The hearings officer for the high school appeal issued his conference report on Wednesday, one day after the first hearing.

The hearings officer for the issued his , laying out deadlines and requirements for the appellants of the project while also opting to combine the appeals into one in an effort to streamline the process.

Friday is the first deadline issued in the report, as appellants are required to initiate “good faith settlement discussions” with the town, something they have not previously done according to hearings officer Timothy Jones. The results of those negotiations are to be delivered back to Jones by Friday, August 24.

One major piece of the appeal was dismissed by Jones following Tuesday’s meeting. MacDonald and others have long expressed concerns related the Activity and Use Limitation that involves the oil beneath the school. However, Jones said there is no jurisdiction in the wetlands appeal related to those issues, so all AUL related claims were dismissed.

Jones then required some clarity for the other aspects of the appeal.

“With respect to the remaining issues asserted in the Petitioners’ Notices of Claim and Pre-Hearing/Pre-Screening Statements, they have thus far been ambiguously stated,” said Jones in his report. “Moreover, after discussing the issues at the conference they appear at present to be significantly based upon speculation and conjecture, and not fact, with respect to technical issues under the Wetlands Protection Act and the Wetlands Regulations.”

As a result, Jones said petitioners must file a signed statement that presents facts that are grounds for the appeals, along with written credible evidence from a “competent source” supporting their claims.

“The failure to comply with this order may result in dismissal of this appeal, absent of showing good cause,” said Jones.

Jones also laid out a list of deadlines that both parties must meet in the likely event that the appeal continues towards its scheduled hearing date of October 25. Among those tasks is designating witnesses for the adjudicatory hearing by August 28.

“At first glance it sounds like the town may think that it’s more favorable towards them than it actually is,” said appellant George Lingenfelter. “Excluding the AUL concerns doesn’t mean they are wrong. Even though it isn’t included, the AUL issue is not going to just go away.”

MacDonald said he reached out on Wednesday to officials to set up time to talk with the town’s attorney as the first step in initiating the settlement talks. Overall, MacDonald said petitioners were not completely satisfied with the conference report.

“There are some things that we disagree with,” said MacDonald. “We find that things are being done that are risking the health and safety of our community, as well as the finances, and the town wants to do things that are detrimental. We feel (Jones) is mistaken in dismissing the AUL concerns.”

MacDonald also expressed concerns with the mitigation plans the town developed, saying they create safety and environmental concerns.

“We’re making a good faith effort to settle the appeal, whether or not the town likes our requests,” said MacDonald. “Basically, we don’t want to have the environment contaminated.”

When asked about the bigger picture of the appeal, MacDonald declined specific comment on whether or not he would be open to continuing to Superior Court if Jones does not rule in his favor following the potential October hearing.

Town Counsel Daniel Deutsch issued a statement on behalf of the town during which he laid out the noteworthy items from the conference report.

“In sum, we believe that today’s order is an important step in the right direction,” said Deutsch.

Jones did not issue a ruling on whether or not the town could begin construction on portions of the high school project during the appeal. That means the town would have to apply to the Department of Environmental Protection and receive action from Jones before that is possible.

Board of Selectmen chairman Mike Newhouse declined to indicate if that is an option on the town’s radar.

“I wouldn’t want to discuss the town’s strategy relative to the substance of the case,” said Newhouse. “Dan (Deutsch) summed things up pretty well and his bottom line was on the money. The order is a good step in the right direction. We continue to feel confident in DEP’s decision and the town’s position.”

Kevin MacDonald August 16, 2012 at 10:14 AM
Matt, it should be noted that the town is planning to rip up the pavement that is the pedway leading from Federal Street to the Wildwood School as one of the mitigating measures relative to the wetlands filing for the High School project. This is called a pedway but is wide enough for vehicles to travel on. Many children ride their bikes and walk up and down this pedway to get to the playgrounds behind the Wildwood. The people on Federal street and neighborhoods off Federal Street are being negatively impacted by this foolish measure. Wildwood Street has been closed from time to time because of flooding. The people of Wilmington should know that this emergency access and egress passage is being eliminated. Totally foolish! How does one possibly accept this as an enhancement to the town?
Jon August 16, 2012 at 11:10 AM
Kevin, It is getting more apparent to all that you will never be satisfied with any descision made. For the past 14 years I can only remember two occurrences were Wildwood Street was closed due to flooding. In addition, the road was temporarily closed to traffic from Middlesex Av but access remained open at all times via Woburn St. In reading some of your past posts, I find them to be nothing but rants with no specific data to justify your claims. I am happy to hear that Mr. Jones also recognizes this and is looking for clarification. I do have one parting question, you had answered a post that was written to you recently stating that if given time, you could have had "hundreds" of signatures. Where were these people at the special elections?
Pete S C August 16, 2012 at 12:26 PM
Correction, Jon, Kevin would be happy if the town did exactly what he wants. I have to wonder if Kevin actually cares about the "environmental issues" or just enjoys the attention.
Sean Fitzpatrick August 16, 2012 at 12:59 PM
Kevin How about taking a passion in cleaning up the mess on Treasure Hill Rd?
Daniel August 16, 2012 at 01:07 PM
It appears the hearings officer is seeing through the appellants' nonsense. Nice going George. Your most important argument on appeal, the AUL, was thrown out as a preliminary housekeeping matter. Gerry you have your hands full too. Now you have to rework your insane, rambling appeal into a presentation which would make sense to an average second grader. Good luck with that. And Kevin, you have been ordered to initiate GOOD FAITH negotiations with the people you have dedicated your pathetic life to hating. We all know you are incapable of doing this. Looks like the lame attempts to stifle and impede the project we all support will be summarily dismissed and relegated to where they belong...the garbage can.
Tom August 16, 2012 at 01:42 PM
What does the pedway behind The Wildwood have to do with building a new high school? It is over 1/2 mile away.
Cheryl Gualtieri Catanzano August 16, 2012 at 02:27 PM
Wow, Kevin, I am impressed that your knowledge of the AUL matter supercedes that of the expert!! I feel sorry for you.
Al Roberts August 16, 2012 at 03:07 PM
I wonder what Hat Boy has to say now....oh wait...."I havent read the appeal yet but if what i read here about the appeal actually pertains to the appeal, then perhaps the appeal may or may not be viable, but then again maybe."
Mario Marchese August 16, 2012 at 05:04 PM
Just wondering how far the appeal process will go now since it will start costing the appellants some money now continue considering they will be costing the Town $3 million in delay costs,
Pete S C August 16, 2012 at 05:30 PM
Can we make Kevin pay that $3 million?
Kevin N August 16, 2012 at 06:08 PM
Are you concerned that if Wildwood St. is closed due to flooding then children will not be able to walk to the playground? I think it might be a good idea to keep the children inside during a flood.
Tom August 16, 2012 at 08:33 PM
No, not concerned at all. Kids are kids, they would just cut through anyway, whether there is a pedway or not.
Al Roberts August 16, 2012 at 11:23 PM
HA HA HA HA! Gotta love that picture of The Three Stooges on the cover of the Town Crier this week! Jerry, Kevin and Chicken George!
Steve H August 17, 2012 at 12:29 AM
Kevin, just curious how are the people being negatively imapcted, and the only access to that pedway is to drive thru the playground or up over a grass hill at the end off the parking lot, so i highly doubt someone would take that route instead of driving half maybe a half mile down the road to woburn st.
Mathew Jancsics August 17, 2012 at 03:35 AM
Glad to see the DEP is doing their part to make sure things go as smoothly and to the letter as possible. Sadly I don't think this will stop it from going to Superior but at least it will knock the wind out of the appellants sails and force them to actually present facts for once.
Mario Marchese August 17, 2012 at 12:48 PM
I wouldn't say the entire $3 million, but there is case law that allows for the reimbursement of attorney fees and expenses against appellants that make false claims to try to stall a project.
Mario Marchese August 17, 2012 at 12:52 PM
I found it very interesting that Representative Miceli couldn't find the time to attend the DEP meeting himself but sent his aide instead. My question is what was more important to our Representative that he could not come personally and represent the town he actually lives in, considering the legislature is now out of session until Jan 2013!
Steve H August 17, 2012 at 11:17 PM
Love to hear his explanation as well, I'm sure it will be a great one


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