PROVINCETOWN — Michael Shuster and Richard McCracken were hoping to partially clear away the vines and briars that cover the rear portion of their 16,500-square-foot lot at 99 Bayberry Avenue and put in a lap pool, a patio, and a meditation garden behind the house.

After seven months of planning board hearings, their project failed to secure site plan approval, with the board citing the rules for the town’s high elevation district as the cause. The homeowners have appealed the planning board’s rejection of the project in state Land Court.

Shuster and McCracken argue that their proposal fits within the town’s bylaws and is similar to improvements made by other neighbors. Their lawsuit asks the judge to overturn the planning board’s denial, which would put it back on course for further consideration and another vote.

Normally, when a plan is rejected in a formal planning board vote, it cannot be resubmitted for at least two years.

The planning board argues that its members were coerced by the applicants to take a premature vote on June 9, 2022, when the members believed there were still potential compromises that could have led to site plan approval.

Because of the property’s location in a high elevation zoning district, the project required both a standard site plan review and an additional high elevation protection district site plan review. The proposed pool would also have required a special permit from the zoning board of appeals, but the project never got to that stage because it failed to clear the planning board.

The plan calls for the removal of about 450 cubic yards of earth to create retaining walls below the house supporting two plateaus. A 20-by-40-foot swimming pool with an infinity edge and a four-foot cascade, plus a surrounding patio and a shed, would be on the first plateau, supported by retaining walls on all four sides, including a double wall on the south side.

The plan also includes a 20-by-60-foot “meditation garden” that would be on a plateau below the pool, also supported by retaining walls. An area of vegetation would remain between the garden and the property line, and all setbacks required under the town’s zoning would be met.

Several nearby residents opposed the project, saying its scope was too grand for the neighborhood. One wrote, “This project is not a small addition but a total metamorphosis of a large outdoor area, with significant and permanent effects on the landscape and others’ living experiences.”

Most of the criticism focused on the pool, which Shuster and McCracken steadfastly refused to downsize. One written comment said the pool was of a size that one would see at a small motel. Another suggested replacing it with an in-ground hot tub or a plunge pool tucked near the house.

Neighbors also questioned the ability of the retaining walls to support the large pool and maintain the stability of the dune.

To counter these predictions of dune instability, Shuster and McCracken hired a team of engineers to review the project. All agreed the retaining walls were adequate to maintain the stability of the dune.

Some neighbors pointed out that the four-bedroom house on the property has been used as a short-term rental.

Angela Bonazinga and Catherine Lewis, who live year-round at 78 West Vine St., wrote: “As many neighbors have expressed, 99 Bayberry is frequently rented to large parties. We are concerned that, if this out-of-scale project proceeds as designed, the level of noise and physical traffic will be extremely disruptive to our quiet residential neighborhood.”

Jon Shee and Joseph Agnostini, neighbors at 95 Bayberry Ave., urged the planning board to focus on the high elevation district rules and reject the project. “We feel that both the spirit and some specifics of the High Elevation District Bylaws that apply to this project are being disregarded,” they wrote, “and that respecting the Bylaws must take precedence.”

Attorney David Reid of South Yarmouth, hired by abutters Tarek Hassan and Simon Rees, said in a letter that the plan, as proposed, left none of the areas within the plateaus undisturbed as “true dune.”

“The natural sands of the dune would be replaced with granite and concrete,” wrote Reid.

Calling a Vote

Attorney Robin Reid of Provincetown, who represented Shuster and McCracken during the site plan review, presented a plan at the final hearing on June 9 that kept the pool and patio area the same but eliminated the meditation garden so that more vegetation would be left undisturbed.

Robin Reid also told the planning board that her clients wanted a straw poll of board members taken that night. If they were in favor of granting site plan approval to the truncated plan, she would ask for a continuation of the hearing and have detailed engineering plans drawn up. If the majority still planned to deny site plan approval, she would ask for a formal vote.

Board member Paul Kelly said he was still bothered by the large rectangular pool. Instead of finding a way to integrate the pool into the existing landscape, “the 20-by-40-foot pool and lounge area have determined how much of the hillside gets cleared and reshaped.”

“My guy wants to swim laps,” said Reid. “He wanted a rectangular pool.”

Board member Jeffrey Mulliken agreed with Kelly. “I always felt it was aggressive to try to fit that much concrete or granite into a deck and that much pool into an area that we are charged with protecting,” he said. The first sentence of the bylaw regulating high elevation districts states that its primary goal is to preserve as much of the dune as possible, Mulliken said. “I didn’t write that bylaw,” he said, “but I respect the people who did.”

Brandon Quesnell, who was chairing the meeting, said the planning board had asked for certain things to be addressed over the course of the hearings, “but the only thing they did was cut the meditation garden. I don’t think that’s enough.”

While board members urged Reid to delay a vote on the site plan, saying the discussion was moving in the right direction, Reid asked for the vote, as instructed by her clients.

Kelly, Mulliken, and Quesnell voted to deny approval. Donna Walker, the only other member considering the project, abstained. Steven Roope had already recused himself from voting on this project, and the other four planning board members were absent.

Shuster and McCracken then filed their complaint in Land Court.

In a recent status report, the town’s attorneys said the planning board would be willing to participate in mediation. Shuster and McCracken said they also would be willing to participate in mediation, “however, the potential for mediated resolution in this case is limited.”