TRURO — Willie and Gloria Cater bought three acres overlooking Fisher Beach in Truro in 1979. They’ve traveled a long road in pursuit of the chance to build there.
The land has no frontage on a public way, although access via a right-of-way established in 1899 was allowed by the Land Court in 2007. In 2014, a proposal by the Caters to create a single lot subdivision on the land was rejected by the planning board. Then in 2016, their request for a variance from frontage requirements failed.
The Caters’ most recent steps were slowed last week when the planning board withheld its approval of their preliminary subdivision proposal for the property. They want to divide the property into two lots, building a single-family home on one and donating the other to the Truro Conservation Trust.
The news wasn’t all bad for the Brookline couple. The yeas and nays were separated by a single vote following the board’s two-hour discussion on Feb. 7. And approval of a preliminary plan is not required in the planning board’s review process.
The focus of the board’s concern was the proposed paved road, 12 feet wide and with a 14-percent grade. The town’s subdivision standards require a 40-foot width and cap the grade at 8 percent.
Board members also expressed concern about potential effects on the environmentally sensitive area, including erosion of the sandy bluff when vegetation is removed and inadequate stormwater management.
While the 1899 right-of-way to the property at 9B Benson Road had never been used, Land Court Judge Gordon Piper ruled in 2007 that it was still valid. Deeds didn’t identify its exact location, which Piper determined, making it the shortest distance from the Cater property to a public road.
The right-of-way, 12 feet wide and about 570 feet long, crosses the Benson Road properties of Lucy Clark, Stephen Loffredo, and Helen Hershkoff, as well as land owned by the Truro Conservation Trust.
Building an access road there would require a handful of waivers from the town’s subdivision standards — for road width and shoulder width, for the use of one berm instead of two, and for its lack of required pitch from the crown to the edge.
Robin Reid, representing the Caters, told the board on Feb. 7 that if it denied the waivers, “the right-of-way is going to be much more onerous to the neighborhood and the environment.”
She pointed out that Judge Piper said a safe and convenient driveway to the Caters’ target site does not require a road more than 12 feet wide.
“While it is true that Judge Piper cannot order the planning board to grant the waivers,” Reid said, “I do think that more than 20 years on the Massachusetts Land Court bench and a site visit to Benson Road, the proposed right-of-way, and the Caters’ property require us to treat his opinion with some respect.”
Attorney Ben Zehnder, representing the Letendre family, abutters to the Caters’ land, told the board that it should not look at the preliminary plan as a “dry run.” Approval or denial must be based on the plan before the board, he said. If the board approved the preliminary plan, he argued, it would be harder to deny it later.
Reid requested that board members Jack Riemer and Paul Kiernan recuse themselves because they had been vocal in opposing a plan presented in 2014. Neither was on the planning board at the time. Kiernan also lives near the Caters’ property, at 10 Benson Road.
Both declined to step down; both were outspoken in their opposition to the current proposal.
Kiernan said the proposed road had no turnouts where a driver could pull off to allow ambulances and fire trucks to pass in an emergency. He also said that abutters could built a fence along the property line, further hindering emergency access.
Attorney Eliza Cox, representing Loffredo and Hershkoff, said her clients “object to the extraordinary amount of environmental damage to the land. The 14-percent grade reduces some of the environmental destruction but still results in a massive cut and fill, extending to a 90-foot width, and the removal of mature trees and vegetation on land the Caters do not own.”
Chair Richard Roberts and members Riemer, Kiernan, and Anne Greenbaum voted to deny the preliminary plan. Ellery Althaus, Virginia Frazier, and Caitlin Townsend voted in favor of the plan.
Before the vote, Althaus said he shared many of the board’s concerns but added, “I think they met their burden, and they’ve done the best that they can to give this property access, which is court-mandated.”
Frazier said concerns expressed by the police and fire departments were “just minimal,” and the use of the road would be light.
Townsend doubted Kiernan’s concern about a motorist possibly blocking an emergency vehicle. “I think we’ve had enough experts and people thinking about this, and I value how much time all these people have spent coming up with a plan,” she said.
At a meeting on Nov. 15, 2023, the board agreed to seek technical advice from the Cape Cod Commission. The commission sent a memo stating that most of the stormwater runoff would flow “over or around” the proposed catch basins because of the road’s steep pitch and suggested the town hire a professional engineer to review the proposed drainage system as well as the pitch of the road, which it said was “nearly at the maximum slope considered safe for travel.”
