WELLFLEET — A court fight that has derailed the building of eight affordable rental units on Paine Hollow Road appears to be on the verge of resolution.
Lawyers for the town and for the three abutters who have been fighting the development for nearly two decades reported that the last pending case was “settled,” according to a written order issued by Barnstable Superior Court Associate Justice Christine Higginbotham on June 3. The judge gave the parties until Aug. 6 to submit a signed agreement.
Full details of the agreement have not been disclosed, but they appear to include a reconfiguration of the driveway so that its slope will be no steeper than 10 percent. Originally, the driveway was to have had a 15-percent slope.
The town has been trying to use the five-acre site at 120 Paine Hollow Road for affordable housing since 2001, when the land, which had been taken for nonpayment of taxes, was turned over to the Wellfleet Housing Authority.
The latest lawsuit has been moving slowly through the courts since 2017, when the abutters appealed the comprehensive permit issued by the Wellfleet Zoning Board of Appeals under state Chapter 40B to Ted Malone, president of Community Housing Resource of Provincetown.
Malone’s proposal called for eight rental units with a total of 11 bedrooms designed in two four-unit structures. The lawsuit was filed by abutters B. Steven and Kay Verney, Robert and Jennie Wallace, and Richard and Marilyn Guernsey. They argued in their original lawsuits that the wastewater from those apartments would contaminate their wells. After several years of litigation, those claims were dismissed.
Malone said on Monday that the number of units and bedrooms will remain the same, though some modifications will be made to satisfy the abutters’ concerns.
The housing authority selected Community Housing Resource as the developer in 2006, with the authority holding a long-term lease on the land.
Malone began the local permitting process with a review by the conservation commission, which issued an order of conditions. The abutters immediately appealed the order, raising the well contamination argument. The Dept. of Environmental Protection sided with the conservation commission, and the abutters eventually lost the case after further appeals.
By the time that case was settled, however, the economy had collapsed in the Great Recession and housing crisis of 2008. Economic conditions made the Paine Hollow development plan unrealistic.
Malone returned in 2017 with a new proposal to build the same project, this time under the state’s Chapter 40B, which allows for a streamlined review process in communities where less than 10 percent of housing stock is affordable. Wellfleet stood at about 2 percent.
During hearings on the permit, there was once again pushback from neighbors over water and the steep grade of the driveway. That concern was shared by Fire Chief Richard Pauley, who said it would be too steep for his apparatus and ambulances to navigate in winter storms.
Malone reworked the plan, decreasing the slope from 15 to 12 percent, but Pauley argued that the National Fire Protection Association’s standards called for no more than a 10-percent grade.
Malone provided opinions from engineers who said a 12-percent grade was adequate for residential driveways, and that the fire safety code exempts single-family and two-family dwellings from the 10-percent maximum.
The zoning board incorporated those opinions in its comprehensive permit, and required an automatic sprinkler system.
As part of the latest agreement, the 10-percent grade will be achieved, but it will require lengthening the driveway, Malone said.
“Hopefully, we’ll have something official signed soon,” he said. “We still have quite a bit of time ahead of us before building.” He must once again secure financing for the project, and the state’s next funding round isn’t until January or February 2022.
Attorney David Reid, who represents the abutters, said that changes in the plan “will be put in a formal agreement and submitted to town counsel.” Then, it will go back to the zoning board and “hopefully, they will accept the revised plan,” he said.
The zoning board members were named as defendants in the suit but did not take an active role in the proceedings. Jonathan Murray of KP Law represented the town but said he could not comment.
Michael DeVasto, the select board chair and a member of the town’s affordable housing trust, was happy to hear of the pending agreement. “If this can be worked out sooner rather than later, it would be great for the town,” he said.
Elaine McIlroy, chair of the Wellfleet Housing Authority, declined to comment on specifics, because she was not aware of a possible settlement, but she did say by email, “No matter what project we are talking about, we need affordable housing more now than ever.”
