WELLFLEET — The long-delayed plan to build four affordable single-family homes on Old Kings Highway has hit another wall: a new lawsuit filed by a group of abutters.
The zoning board of appeals unanimously approved a comprehensive permit for the project on July 18. Five members of the ZBA and Habitat for Humanity of Cape Cod are the defendants in the suit, which was filed in Barnstable Superior Court on Aug. 6.
The lawsuit asks the court to annul the ZBA’s decision on five separate grounds — one of them procedural, that the board “failed to provide the required written notice to all parties in interest,” but the others relating to the proposed site and concerns about impact on the neighborhood.
The plaintiffs argue that the project “is not suitable for the proposed location”; that “development in this secluded area will have an adverse effect on the character of the neighborhood”; that the use of Old Kings Highway for access will result in “loss of privacy, and drainage problems” for abutters; and that the project does not meet stormwater management standards.
Habitat’s plan is to build four homes at the site, two 972-square-foot two-bedroom houses and two 1,200-square-foot three-bedroom houses. They would be accessed from a narrow unpaved road between Long Pond Road and Gross Hill Road.
Under the plan, the homes would be deed-restricted. That means the first owners would have to be earning no more than 65 percent of area median income. The restriction also limits resale prices to keep the properties affordable for future owners, who would also have to qualify under income guidelines.
The effort to add to the town’s meager stock of affordable housing by developing the 2.83-acre town-owned parcel at 2254 Old Kings Highway has had a tortured history. The new lawsuit is the third filed by abutters in the case.
The property was transferred to the Wellfleet Housing Authority more than five years ago, and the planning board unanimously approved a special permit for Habitat to build three homes. The 2015 annual town meeting approved the use of $225,000 in community preservation funds for the project. But a group of abutters appealed the planning board’s decision.
Habitat then took a different approach, asking the ZBA for a comprehensive permit under the state’s Chapter 40B. That law gives developers of affordable housing a streamlined route to approval in towns where the stock of such housing is below 10 percent. Wellfleet’s stands at 1.9 percent, the lowest of any Cape Cod town.
The ZBA unanimously approved the comprehensive permit in March 2016, but the abutters went back to court. They eventually won their case on a technicality in the ZBA’s voting procedure. As a result, Habitat had to go back and start the approval process over from the beginning. When they returned to the ZBA with their new plans this year they asked permission to build four homes rather than three.
Town meeting had approved the building of four houses, but the housing authority and Habitat chose to ask for only three in order to make the plan more palatable to abutters.
Bringing this latest suit are Martin and Felicia Magida of Rowayton, Conn.; Harry and Jean Rubinstein of Chelmsford; Anita Rubin of Newton; Kurt and Rochelle Hirschhorn of New York City; and Marcia Dworkind and Charles Merzbacher of Cambridge. They are represented by John P. McCormick of Orleans.
At a May 9 public hearing on the project, the ZBA acknowledged receiving a letter from McCormick stating, “This development will result in loss of screening and habitat for birds and wildlife and will have a detrimental impact on the neighborhood.”
Housing authority chair Elaine McIlroy responded to the lawyer’s argument at that time by saying, “We have to balance losing young people in our community with losing birds and trees.”
According to the 2012-2016 American Community Survey, the median age of Wellfleet’s 3,000 residents is 62.2 years, the oldest of any Cape Cod town.
