WELLFLEET — A longer driveway with a gentler slope, some beefed-up buffers, and a promise to sink new wells should there be water contamination issues are among the concessions that affordable housing developer Ted Malone has made to allow a much-debated eight-unit project on Paine Hollow Road to finally move forward.
Following the signing of the agreement between Malone and a group of abutters last month, the Barnstable Superior Court remanded the case bath to the Wellfleet Zoning Board of Appeals, which is scheduled to discuss it at its Oct. 14 meeting.
The board must decide whether the agreed changes in the development plan, which received a permit from the board in 2017 under the state’s Chapter 40B affordable housing law, are significant enough to require another public hearing process or can be considered minor modifications.
Once everyone is satisfied, Malone will be able to seek state and federal funding for the project.
The battle between Malone, president of Community Housing Resource of Provincetown, and three abutters started 15 years ago, shortly after his proposal for the town-owned five-acre parcel at 120 Paine Hollow Road was selected in the town’s bidding process.
The town had taken the property in 2001 for nonpayment of taxes and turned it over to the housing authority, the agency that would lease it to the developer. Malone’s plan called for eight rental units with a total of 11 bedrooms, contained in two four-unit buildings.
Malone began seeking permits for the work in 2006 with a review by the conservation commission, which issued an order of conditions. The abutters immediately appealed the order, arguing that their wells could be contaminated. The state 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 recession and housing crisis of 2008. Economic conditions made the Paine Hollow development plan unrealistic.
Malone returned in 2017 with a proposal to build the same project, this time under the state’s Chapter 40B, which allows for a streamlined review process. Neighbors again pushed back over the water question and the steep grade of the proposed driveway. The latter concern was shared by Fire Chief Richard Pauley, who said the driveway would be too steep for his apparatus to navigate during the winter.
Malone adjusted the driveway slope from 15 to 12 percent, but Pauley held out for a further reduction to 10 percent.
Based on opinions from engineers, who said a 12-percent grade was adequate for residential driveways and that the fire safety code exempts one- and two- family dwellings from the 10-percent slope maximum, the zoning board granted the comprehensive permit with a requirement for an automatic sprinkler system.
Abutters B. Steven and Kay Verney, Robert and Jennie Wallace, and Richard and Marilyn Guernsey then sued the zoning board and Malone in Superior Court.
Attorney David Reid, who represents the abutters, outlined the terms of the recently signed agreement. One provision reduces the grade of the driveway to 10 percent, which will require making it longer.
“They agreed to improve stormwater catch basins, shifted the location of the building further away from neighbors, and agreed to install fencing for security and privacy,” Reid said. “They also agreed to financial assistance if the wells are adversely affected either by drawdown of the water or by contamination from their septic system.”
According to Reid, Community Housing Resource agreed to drill replacement wells in better locations should the project adversely affect neighbors’ existing wells.
If the abutters are not satisfied with the zoning board’s decision on the modifications in last month’s agreement, they can go back to court. Both Marilyn and Richard Guernsey have died since the lawsuit was filed, but a new representative of their family trust has been appointed.
Attorney Peter Freedman, who represents Community Housing Resource, said he believes “everybody including the neighbors would like this to be settled so the project can move forward.”
“I think they’re satisfied with the changes,” Reid said. “They were never opposed to the project in principle,” he added.
In an email, Malone said the site plan still includes eight units in two buildings “in the same shed-roof style.
“We believe that these changes should be approved as insubstantial modifications of the previously approved Chapter 40B comprehensive permit,” he said.
Once the plan is approved and the appeal period expires, Malone can apply for state and federal financing.
