WELLFLEET — The Sexton family’s failed bid to claim ownership of property on Old King’s Highway where the town built affordable housing more than 20 years ago isn’t over.
A state Land Court judge rejected the Sextons’ argument, ruling in December that the town had the stronger title. But the relief brought by that decision was short-lived.
Chellise Sexton, 76, of Eastham and her son Kevin, 49, of Wellfleet notified the court on Jan. 22 that they are asking the Mass. Appeals Court to reverse the decision. The appeals court will formally open the case in the next few weeks, and the Sextons will have 40 days to file their appellate brief.
The 8.6-acre property at 324 Old King’s Highway, now called Fred Bell Way, was taken by the town in 1967 from owner Ralph Witcher for failure to pay $96.54 in property taxes. In 1993, town meeting turned the land over to the Wellfleet Housing Authority. And in 2001, the nonprofit Community Development Partnership (CDP) signed a 60-year lease on the property and built 12 units of affordable rental housing. The CDP continues to manage the $1.5-million complex.
In their lawsuit, the Sextons went after several entities in addition to the housing authority and the CDP, including utility companies, the state (because of the involvement of the Dept. of Housing and Community Development), and the federal government, in connection with subsidies provided for the housing development.
A handful of owners who built homes on Delphi Way also face potential fallout from the case, because the sole access to their properties is by way of an easement over the town-owned land. The Sextons asked the court to void those easements.
“We are disappointed that the Sextons have decided to appeal the Court’s strong opinion,” wrote Jay Coburn, CEO of the CDP, in a statement. Their decision, he wrote, would “prolong the anxiety experienced by the 12 families who call Fred Bell Way home.”
The Timber Appeal
Kevin Sexton has a separate case against Wellfleet pending in Land Court. He appealed a cease-and-desist order issued in 2021 by then-Building Commissioner Robert Fowler and the zoning board’s decision to uphold that order. Sexton had clearcut a large wooded area on his family’s 25-acre property in the National Seashore next to Lecount Hollow Beach.
Sexton’s brother Kristian told Fowler that the purpose of the tree cutting was to create a private parking lot and driveway for the family’s cottage colony, Cooks by the Ocean. Neighbors, however, reported they had seen the Sextons charging beachgoers to park at the stripped site.
Under zoning laws adopted by all the towns in the National Seashore, the cutting of timber is strictly limited and requires permits from town authorities. The appeal in that case is still pending.
Wellfleet’s special town meeting this past September approved amendments to the town bylaw, including one that defines “timber,” which is at the center of the court debate. The Sextons claim that the change was made to bolster the town’s position in Land Court.
In October, Kendall Sexton, another of Kevin’s brothers, filed an objection to the bylaw amendment with the state attorney general’s office, which must approve general and zoning bylaws enacted by towns before they become part of the local code.
“The prohibition of the cutting of nearly all trees on private land within a district is illegal, effects an unconstitutional taking, violates due process guarantees and cannot be a function of zoning,” argued Kendall Sexton. The National Seashore District includes about half of Wellfleet, he said.
The filing also pointed out that the public hearing on seven zoning bylaw changes last September had not been properly advertised. Legal notices must precede the public hearing by 14 days. The town’s notice was published in the Independent 13 days before the hearing.
The attorney general’s office has required the town to post another legal notice, which appeared in the Jan. 18 Independent, saying that its previous notice of the public hearing had been inadequate. Anyone who believed the defect in the notice was misleading or prejudicial was given 21 days to submit a written statement to the town clerk’s office.
During a discussion with the planning board on Jan. 25, Town Counsel Carolyn Murray said the attorney general’s office may be inclined to disapprove a bylaw change when an objection is lodged. The only bylaw that had drawn an objection, Murray said, was the timber bylaw that the Sextons objected to.
Meanwhile, Kevin Sexton is working on plans for two new subdivisions on his family’s land at 230 and 270 Old King’s Highway and 538 and 548 Old King’s Highway. To date, the planning board has held one informal discussion with Sexton, who is in the process of submitting preliminary plans. But neighbors are already expressing concern.
Residents of Somerset Avenue, which abuts 538 and 548 Old King’s Highway, wrote to say the 10-lot subdivision plan “appears to favor intensity of use over sound design.” While an informal plan from Sexton identified Somerset Avenue as an emergency access easement for his development, residents said they “do not intend or desire” to grant the easement.
The residents added that the project should meet the requirements of the Mass. Endangered Species Act because, they say, part of the parcel is within a priority habitat for rare species.
Planning board members have decided to send a letter to Sexton asking for full title searches on both properties to clarify any easements they might contain and how their presence might affect subdivision layout. Residents have used a path on one of the target sites to access a pond for more than 20 years.
The board also decided to ask Sexton for surveys of the properties to see whether the proposals will affect the habitats of any endangered species.
Planning board chair Gerry Parent lives next door to one of the proposed locations and told the Independent he has decided to recuse himself from decision-making on both.