WELLFLEET — The town’s purchase of 254 acres of shellfish flats for $2 million from the HDYLTA Trust, which was supposed to close by Sept. 20, has been at least temporarily derailed by the results of a survey of the property commissioned by town officials. The survey showed the trust’s holdings totaled less than two-thirds of what had been offered — just 162 acres.
The select board met in closed session with Town Administrator Dan Hoort on Sept. 30 to discuss the situation, and none of those who participated in the meeting would speak about it for the record. But several people with knowledge of the negotiations now taking place between the town and the owners of the flats confirmed that the proposed sale, approved at town meeting in April, now appeared to depend on the results of an appraisal of the property, scheduled for this Friday, Oct. 18. A new deadline for the closing has been set for Monday, Oct. 28.
Edward Englander, the Boston attorney who represents the HDYLTA Trust, said Tuesday that the town had requested the 38-day delay in the closing date. “My expectation is that it will close on Oct. 28,” he said, declining to discuss the survey issue. “I don’t feel comfortable talking about it because it’s a sensitive issue,” said Englander.
But at least one town official close to the negotiations expressed doubt that anything would be decided before the end of October. Depending on the appraiser’s report, there is a chance that a new town meeting vote would be called for, or at least an open meeting at which citizens could express their current view of the HDYLTA affair.
Since the April town meeting vote that approved the purchase, some citizens have complained that they were misinformed at the time and would have voted differently with more accurate information. In particular, they said they relied on assurances that there would be a contingency in the town’s purchase and sale agreement requiring a favorable independent appraisal of the value of the flats. When the purchase and sale agreement was signed in June, however, Hoort revealed that there was no such contingency in it. He said that town counsel from the firm KP Law had advised the select board that an appraisal was not necessary.
“I’m not opposed to the purchase,” Moe Barocas told the select board on July 23. “But I’m not happy with the transparency. The town is losing confidence in this board. We need to grab this situation and correct it.”
He asked that an independent task force be created to look into the sequence of events leading up to the signing of the purchase and sale and how the decision not to get an appraisal was made. “We need people outside the board to have a look, report to the public, and have a formula for improvement,” said Barocas.
At that same meeting of the select board Hoort said that the town had hired a surveyor and an appraiser and that he expected both to complete their work by Labor Day, in plenty of time for the Sept. 20 closing. It’s not clear whether that appraisal was ever carried out, but the survey was — and that led to the current stalemate.
Trust’s Lawyer Mistrusts Town’s Surveyor
“Englander believes the survey was done incorrectly,” one town official who spoke on condition of anonymity told the Independent. Toby Storer, one of the four HDYLTA trust owners, confirmed this was true. The dispute lies in how far out into the harbor the trust’s property extends. The town’s surveyor apparently drew the boundary at the mean low tide line. Englander maintains that the proper boundary is at 100 rods, or 1,650 feet, from the mean high tide line.
The origin of this argument is in a Massachusetts law more than 370 years old: the Colonial Ordinances of 1641-47, “which in effect moved the line between public and private property to the low water mark, but not farther seaward of the high water mark than ‘100 rods,’ or 1,650 feet,” according to the state Office of Coastal Zone Management.
Storer said he is counting on the results of the appraisal coming in well above the town’s negotiated price of $2 million for the flats. In that case, he said, the question of exactly how many acres are being conveyed will be “neither here nor there.”
The town official who described Englander’s argument about the survey expressed confidence in attorney Katharine Lord Klein, who is representing Wellfleet in the negotiation. “She has done an outstanding amount of work on this,” said this official, “and she says the survey technique that was used in this case was according to standard. The only opinion I’m listening to is Klein’s.”
The next scheduled meeting of the select board is on Tuesday, Oct. 22.
