Judges in two separate courts rendered rulings in the last week that buoyed developers of rental housing in Provincetown and Truro.
In both cases, the state’s new Housing Choice Act has come into play. The law allows courts to require those opposing affordable housing projects to post bonds of up to $50,000. The intent is to discourage frivolous lawsuits that can delay such projects for years.
These two cases, involving the two Outer Cape towns, appear to be among the first where the new provision is being invoked.
In the Provincetown case, a Barnstable County Superior Court judge ordered residents trying to halt the Barracks workforce housing project to post a $15,000 bond.
And on Monday, a state Land Court judge denied a last-minute request from those appealing the Cloverleaf affordable housing development in Truro to reconsider the $25,000 bond she had ordered in November.
The Barracks Case
Lawyers for developer Patrick Patrick and the town asked Barnstable Superior Court Judge Thomas Perrino to require a $50,000 bond during a Nov. 30 hearing on an appeal of the permit the Provincetown Planning Board had granted for the Barracks. The judge said he would take the request under advisement.
On Dec. 8, Perrino ordered the four appellants — Julie and Alison Gray, Jay Gurewitsch, and John Crowley — to post a $15,000 bond.
Under the state statute, the court must balance the merits of the appeal with the harm resulting from delays to the project.
In his decision, Perrino noted that neither side had provided details to bolster their respective positions. Patrick “submitted little if any material to substantiate claimed harm” in the request to require a bond, the judge wrote. The appellants alleged that the planning board had exceeded its authority in granting the permit, but, the judge wrote, “the complaint does not articulate what authority the board has or how it was exceeded.”
Perrino said that the endorsement of the Barracks project by the Provincetown Select Board indicated there was public interest in addressing the need for workforce housing. “The public interest and community needs or interest appear urgent and would be harmed due to delay caused by this appeal,” Perrino concluded.
At issue is Patrick’s plan to construct a three-story building at 207 Route 6, to include 28 four-person dormitory units with private bathrooms and a common kitchen, intended to help house those working seasonally; five studio units and 10 one-bedroom apartments, which would be year-round rentals; and one two-bedroom manager’s unit.
The judge set the bond at $15,000, which assumes “ordinary litigation costs.” Once the case is settled, the winning side could calculate true litigation costs and seek them from the losing side, Perrino said.
The Cloverleaf Case
In what may have been the first use of the amendment in the Housing Choice Act, a state Land Court judge in November ordered residents seeking to overturn a comprehensive permit for the Cloverleaf affordable housing development on Highland Road in Truro to post a $25,000 bond.
Instead of posting the bond by the Dec. 9 deadline, attorney David Reid, who represents the 10 residents appealing the zoning board’s permit approval, filed a motion asking Judge Diane Rubin to reconsider the bond order.
In the motion, Reid stated the court should consider the relative merits of the appeal and argued the court had failed to consider the financial burden placed on each of the 10 plaintiffs, who together would post the bond, or the “difficulty and impracticality of how a bond would be apportioned among 10 plaintiffs.”
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.
In her decision to deny the motion to reconsider the bond, Judge Rubin said that, to prevail on such a motion, Reid would have had to specify changed circumstances such as newly discovered evidence or development of a relevant law, or show there was an error in the original ruling.
Reid had submitted affidavits from Robert Vanasse on traffic impacts related to the Cloverleaf project and from Thomas Cambareri and Peter L. Herridge regarding possible harm to downgradient wells with his motion for reconsideration. Rubin said that evidence wasn’t new and could have been submitted when Reid made his initial case in opposition to the bond.
The Cloverleaf project, which will be developed by Community Housing Resource of Provincetown, is a 39-unit mostly affordable rental project approved at town meeting in 2016 to be built on land donated by the state for that purpose in 2017. It was permitted by the Truro Zoning Board of Appeals under the state’s Chapter 40B housing statute in January 2021.
Rubin has also denied a request from Christine Maxwell, one of the Cloverleaf plaintiffs, to dismiss a counterclaim brought against her by the town of Truro for allegedly trespassing on the town-owned site at 22 Highland Road.
Maxwell, or the owners before her, installed a driveway on the land that provides access from the highway to the 24 Highland Road home Maxwell now owns. The town claims that this driveway could interfere with development of the Cloverleaf project. Maxwell has ignored the town’s demand that she stop using it.
Judge Rubin wrote in her decision that, “because the trespass claim is inextricably linked with the proposed project,” it is appropriate for her to consider it as part of the appeal of the comprehensive permit for Cloverleaf.
