TRURO — In what could be the first use of a new provision in the Housing Choice Act, a state Land Court judge has ordered residents appealing the town’s permitting of the Cloverleaf affordable housing development on Highland Road to post a $25,000 bond.
Lawyers for the defendants in the suit, developer Ted Malone and the town’s zoning board of appeals, had asked the judge to require a $50,000 bond, the most allowed under the law.
In her eight-page ruling, which set a Dec. 9 deadline for the posting, Judge Diane Rubin expressed doubt about whether 9 of the 10 plaintiffs had legal standing to bring the suit.
“To succeed with their appeal, plaintiffs will first need to satisfy the standing requirement,” Rubin wrote. “In that regard, only one of the 10 plaintiffs is an actual abutter to the project site who is entitled to a presumption of standing.” The other plaintiffs will have to prove that their properties will suffer adverse effects from the project that are greater than the effects the project will have on the general public.
“Fantastic,” said state Sen. Julian Cyr, a vocal advocate for affordable housing, in reacting to the judge’s decision.
“I think it shows the legislation is working to rein in frivolous lawsuits and stem the ‘NIMBYism’ we see in many communities, including my hometown,” said Cyr. “I have no patience for people manipulating the courts to try to run out the clock on desperately needed housing.”
The Cloverleaf project has been in the works since before he was elected in 2016, Cyr said.
The plaintiffs are Lauren P. Anderson, Abby Lynn Corea, George Dineen, Barbara Golding, Samantha Hayman, Joanne Hollander, Donald Horton, Alice Longley, Eve M. Turchinetz, and Christine Maxwell.
“We were surprised and disappointed in the order,” said attorney David Reid, who represents the 10 appellants. He added that they are “looking into the process” for posting the bond but also considering an appeal of the order.
“We had been working on possibly engaging in settlement discussions with the town and developer, but that may have to wait given the posture of the case,” Reid said.
At issue is a 39-unit affordable rental project to be built on state-donated land. It was permitted by the ZBA under the state’s Chapter 40B housing statute.
Opponents filed suit in February in Superior Court against the zoning board and Malone, president of Community Housing Resource. The case was shifted to Land Court in June, with a tentative trial date set for the week of April 18, 2022.
Last month, Truro officials and Malone invoked the new provision of the Housing Choice Act.
In her ruling, Judge Rubin cited several reasons for requiring the bond, although she set the amount at $25,000 because it is limited to coverage of certain case-related costs.
“With respect to the merits of the appeal, on the one hand I consider the lengthy due diligence by the town, beginning in 2017,” wrote Rubin. “The due diligence encompassed extensive engineering analyses to extend the water line along with various reports, site plans, and engineering plans.”
Opponents have cited possible contamination of their wells from the project. Rubin noted that the planned wastewater system had been reviewed by a hydrologist and that the ZBA had held 26 hearings and set numerous conditions “to ensure protection of public health and safety with respect to private wells.”
The town and Malone argued that the delay resulting from the suit would increase construction costs and could threaten the viability of the entire project.
As of a July 16 case management conference, “the plaintiffs had yet to engage any experts such that their alleged concerns about potential traffic and wastewater harms were unsupported by engineering analysis and largely speculative,” Rubin wrote.
In his arguments against the bond requirement, attorney Reid focused on a legal technicality, arguing that the new provision in state law “doesn’t expressly apply to appeals of comprehensive permits under Chapter 40B.”
The specific paragraph in the amendment authorizing the bond “makes no reference to ‘affordable housing’ or appeals of ‘comprehensive permits,’ ” Reid wrote.
Rubin disagreed, saying the amendment specifies that bonds can be required when a plaintiff appeals “the decision to approve a special permit, variance or site plan.” In issuing the comprehensive permit for Cloverleaf, the ZBA had granted variances from a handful of local density requirements and also approved a site plan, Rubin said.
Malone said he was pleased with the decision as well as “the detail the judge provided.”
“I hope that it’s precedent-setting and it gives people pause to think,” Malone said, adding that, with consultants and expert witnesses, the case will be costly for both sides.
Cyr said it’s time people start “living their values” when it comes to progressive politics.
“One of our biggest challenges is housing,” the senator said. “At this pace, we aren’t going to have year-round communities.”
