Habitat for Humanity of Cape Cod, whose efforts are generally welcomed by communities, has been embroiled in court battles for the last several years over plans to build four affordable houses on Old King’s Highway in Wellfleet and three at 181 Route 6 in Truro.
It’s an unusual situation for Habitat. The organization’s projects don’t generally get held up in court, said Wendy Cullinan, the nonprofit’s president and CEO. “We have really tried to satisfy all the concerns over the years,” she said. “We have 156 families living in Habitat homes we built on the Cape.”
Both the Wellfleet and the Truro projects received permits from the appropriate town boards that were then appealed in Superior Court by neighbors. The plan for the houses on Old King’s Highway has been the subject of three appeals over the last six years, filed by essentially the same set of abutters.
In Truro, a judge agreed with an abutter in an appeal of a plan for three affordable homes. The town appealed the judge’s ruling, and the court again sided with the abutter. Habitat still holds out hope it can produce a plan amenable to that neighbor.
State Sen. Julian Cyr, who lives in Truro, has expressed frustration over lawsuits that have stalled more substantial projects, including the Cloverleaf in his hometown. “It’s your right to file a lawsuit,” he said. “But understand the harm you’re doing, and that your actions have a very selfish, entitled nature.”
Many court appeals of affordable housing decisions are unsuccessful, but can cause delays sufficient to kill a project. Gov. Charlie Baker recently signed an economic development bill whose provisions are aimed at deterring frivolous appeals. They allow judges to require the complainants to post bonds of up to $50,000 to cover a developer’s costs if the appeal fails.
The Truro Proposal
Habitat for Humanity has developed a slightly new plan for 181 Route 6. It is now being reviewed by engineers at the Horsley Witten Group, who were recently hired by the Truro Housing Authority.
The proposal on the table calls for two three-bedroom houses and a single one-bedroom house on a 1.7-acre property.
In 2013, Habitat secured a comprehensive permit from the zoning board of appeals under the state’s Chapter 40B law for three houses with a slightly different configuration of bedrooms. The permit was subsequently appealed in court by Brenda Connors of 4 Avery Way. Connors has been successful in Barnstable Superior Court, arguing runoff from the site would damage her property.
The latest ruling came in March 2020, with Barnstable Superior Court Justice Thomas Perrino finding in favor of Connors. Shortly after the court decision, Habitat’s Cullinan told the Independent that the organization would assess next steps. The result was the plan now under review by Horsley Witten.
On June 22, Elizabeth Wade, director of land acquisition for Habitat, said the organization has continued to be in touch with the Truro Housing Authority.
“Habitat owns the property, but there is a mortgage with the housing authority,” Wade said. There is a reversion clause in the mortgage, Wade said, but although the date for that has passed, the housing authority is waiting to see what will become of the revised plan. A discussion of 181 Route 6 is on its July 8 agenda.
The Habitat project was proposed as a local initiative, meaning it had the support of the town.
If Horsley Witten concludes the new plan is suitable for the site, Habitat will come back to the town asking that it be classified in addition as a local initiative 40B.
And in Wellfleet…
In 2015, abutters filed a Superior Court appeal of a special permit from the town’s planning board to build three Habitat houses on Old King’s Highway.
Instead of fighting the case, Habitat decided to apply for a comprehensive permit, which was unanimously approved by the local zoning board in 2016. Abutters appealed the comprehensive permit and won, based on a technicality in the zoning board’s voting procedure.
Habitat returned to the zoning board with a new plan, this time for four houses. The zoning board granted the comprehensive permit in July 2019, and abutters appealed it in Superior Court a month later.
Filing the suit were Martin and Felicia Magida, Harry and Jean Rubenstein, Anita Rubin, Kurt and Rochelle Hirschhorn, Marcia Dworkind, and Charles Merzbacher. All are represented by John McCormick, who did not return a call for comment on his clients’ appeals.
The court is expected to act on the appeal by early fall, Wade said.
Elaine McIlroy, who chairs the Wellfleet Housing Authority, said the local review process conducted for such projects is exhaustive, which is why most proposals eventually prevail, “in spite,” she said, “of the time and money spent to fight them.
“It was encouraging to see that the new economic development bill signed by Gov. Baker addresses the issue going forward,” McIlroy said in an email.
McIlroy said the need for affordable housing on the Outer Cape is extreme.
“It would be great to find more common ground in our community to avoid these costly and time-consuming appeals,” McIlroy said.
