WELLFLEET — Two subdivisions proposed by Kevin Sexton for undeveloped land on Old King’s Highway got considerable pushback during site plan reviews conducted by the planning board over the past six weeks.
At an April 2 hearing on 10 lots proposed at 538 and 548 Old King’s Highway, the fire chief said his department has a problem with Sexton’s plan. The long road into the subdivision — about 700 feet longer than subdivision rules allow — would create a risky situation for both the fire department and property owners, according to Chief Joseph Cappello. The hearing was continued to June 18.
Sexton’s proposal for eight lots at 230 and 270 Old King’s Highway, which was before the planning board on May 7, raised objections because it could jeopardize public access to the town landing at Duck Pond. That hearing was continued to July 9.
Access to Duck Pond
At the May 7 site plan review, Sexton’s lawyer, Albert Schulz of Osterville, said the proposed layout of the eight-lot subdivision on 10 acres would not block access along Duck Pond Road, but he said six of the proposed lots will sit on that road, and their future owners could in fact block access.
Furthermore, the lawyer said, Sexton will not agree to placing easements on the lots the dirt road crosses.
The town’s attorney, Justin Perrotta of KP Law, agreed that the town has no authority to keep Duck Pond Road open because it is not a publicly laid out way. While the public has used it regularly for more than 20 years to get to the pond, it would take a court decree to establish the road as a “prescriptive” easement based on use, Perrotta said.
Perrotta said the planning board could not consider any potential effect on the use of Duck Pond Road as part of its site plan review because Sexton’s proposal does not use the dirt road for access, and none of the planned infrastructure will affect it.
“You sort of have to think about it as if it wasn’t even on the plan,” Perrotta said of the road.
But that proved difficult for those at the hearing.
“As the town’s planning board, we are supposed to look out for things of this nature to make sure public access and things aren’t swallowed up,” said board member Alfred Pickard.
Vice chair David Mead-Fox, who presided at the hearing because chair Gerry Parent is an abutter to the subdivision and recused himself, said “tons of people” use the dirt road to the pond, “so you can understand there’s an interest in what happens to it.”
If access can be preserved only by court decree, that could take years, Mead-Fox said.
Member Bonnie Shepard argued that the dirt road could be classified as an emergency access road under the town’s subdivision control laws. “There are emergencies at ponds,” she said. “People drown. There has to be guaranteed access for emergency vehicles.”
But Perrotta maintained that the only way to keep Duck Pond Road open would be through the court. The select board could take the lead on behalf of local residents, he said, or residents themselves could take legal action.
What happens in these situations depends on “who strikes first,” the town’s attorney said. Someone who has used the road for 20 years could go to court to secure the right to continue using it. On the other hand, a property owner could go to court to prohibit use of the dirt road or could simply block access. “That’s what generally happens to bring these issues to a head,” he said.
The situation is common on Cape Cod. “There are dirt paths that have been used for a long time, but the legality has never been sorted out,” Perrotta said.
One resident suggested that Duck Pond Road must be an official road because it has a street sign.
Whitetail Lane resident Chris Merl told the planning board he has been using Duck Pond Road for 53 years. “The planning board’s charge is to protect the community,” he said, “and I don’t think there should be a vote on this subdivision, whether it’s in their purview or not.”
That hearing will continue on July 9.
A Road Too Long
At 538 and 548 Old King’s Highway, Sexton proposes a 10-lot subdivision on eight acres sandwiched between Somerset Avenue and Dow Drive. Neighbors said they’re concerned about stormwater runoff, effects on wells, tree clearing, and increased traffic on Old King’s Highway.
The fire dept. said the length of the proposed road presents a problem. Under Wellfleet’s subdivision regulations, the maximum length of a road that ends in a cul-de-sac is 1,000 feet. Sexton has requested a waiver of that rule; his proposed road is nearly 1,700 feet long.
At the April 2 hearing, the board discussed a letter from Fire Chief Cappello, who recommended capping the road’s length at 1,100 feet. The department’s pumper truck is equipped with 1,200 feet of hose, he wrote, so a second pumper from another town would have to be called to handle a fire in the subdivision. That situation would put both residents and firefighters at risk, Cappello said.
Planning board members agreed with the chief. “If the fire dept. can’t protect this property, how can we say it’s OK?” said Beth Singer. Shepard said Sexton would need to plan for a shorter road and fewer houses. “I don’t see any way around it,” she said.
Sexton’s engineer, Edward Pesce of Pesce Engineering & Associates in Plymouth, has been discussing the issue with the fire dept. and is expected to offer revised plans on June 18.
