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Community Housing Resource of Provincetown

    CLOVERLEAF

    More Plaintiffs Sign On to Fight Truro Housing

    Opponents appear to seek delay with a lawsuit that’s unlikely to be won

    By

    TRURO — The attorney for property owners suing the developer of the 39-unit Cloverleaf project and the Truro Zoning Board of Appeals has added 13 plaintiffs to the suit filed last month in Barnstable Superior Court.

    Neither David Reid, the lawyer, nor any of the now 15 named plaintiffs would answer questions about their motives, but affordable housing advocates see the suit as a delaying tactic that could jeopardize state funding for the project.

    Attorney Reid, of Stone & Reid in South Yarmouth, is suing developer Ted Malone of Community Housing Resource of Provincetown and the five ZBA members who approved a comprehensive permit for the project on Jan. 14. Initially, there were just two plaintiffs: Lauren Anderson of 30 Highland Road and Helen Torelli, who lives in New Jersey and at 9 Twine Field Road.

    But on March 4, Reid added the names of 13 other people he says will be harmed by the development, bringing the total number to 15. None of the new people on the list are abutters, and most live more than a mile from the proposed site at 22 Highland Road.

    An aerial view from above the Cloverleaf housing site in North Truro looking south. (Photo Ryan Fitzgerald)

    Robert Weinstein, chair of the Truro Select Board, said it seems clear the objective of the lawsuit is not to win, because none of the plaintiffs has standing — that is, the statutory right to appeal a ZBA decision. In order to show standing, plaintiffs must prove they could be harmed by the development. According to Sharon Petrillo, a zoning law specialist at Greenbaum, Nagel, Fisher & Paliotti in Boston, that will be a high hurdle.

    “The harms cannot merely be alleged as something that may happen,” said Petrillo, but rather require a “valid and definite” experience of harm, or expert opinions supporting the claim of potential harm.

    The opponents know they cannot win, Weinstein said, but they want to run out the clock in hopes that state funding falls apart. “Delay, delay, delay” would be the best strategy to stop the development, planning board member Peter Herridge, a vocal opponent of the Cloverleaf, told the Independent last year.

    Reid has not returned multiple calls seeking comment.

    The delay tactic is common enough that the state legislature in January passed an economic development bond bill that includes a section titled “Abutter Appeals Reform” to address meritless legal challenges. The law gives judges the authority to require a party appealing a decision to post up to a $50,000 bond if the judge deems “that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs.” The law further specifies that “the court is directed to consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant.”

    Taxpayers could be paying for part of this legal battle. The select board is now in the process of deciding how much the town will help the developer defend the project in court.

    As for the lawsuit’s potential to jeopardize the project’s funding, Malone said he has already missed the deadline to apply for low-income housing tax credits. The deadline was in January, but pre-approval was in November, and at that point the project still needed a permit from the ZBA, Malone said. This means the project will be pushed out a year in any case, even without the complication of the lawsuit.

    The first two plaintiffs in the suit are Lauren Anderson, who lives three houses away from the Cloverleaf at 30 Highland Road, and Helen Torelli, whose Truro property is nearly a mile away at 9 Twine Field Rd. Those now joining the suit are John, Brianna, and Mary Bobola of 7 Windago Lane, Rosemary Broton Boyle of 43 Knowles Heights Road, Abby Lynn Corea of 1 Toms Hill Path, George Dineen of 22 Great Hollow Road, Susan Grace of 28 Windago Lane, Barbara Golding of 17 Great Hollow Road, Samantha Hayman of 17C Great Hollow Road, Joanne Hollander of 13 Toms Hill Path, Donald Horton of 5 Longnook Road, Alice Longley of 39 Knowles Heights Road, and Eve Turchinetz of 22 Great Hollow Road.

    All of the plaintiffs either could not be reached or refused to comment.

    HOUSING

    Last-Minute Change Delays Cloverleaf OK

    The developer wants to remove market-rate units from project

    By

    TRURO — The development of the affordable housing project known as the Cloverleaf hit a snag on Dec. 17 that has delayed the approval of the 39-unit plan by the zoning board of appeals.

    The developer, Ted Malone of Community Housing Resource of Provincetown, told the zoning board that the seven market-rate units that were included in the original plan— along with 32 income-restricted apartments — are no longer feasible because of the way the state regulates housing subsidies.

    “The numbers just don’t work,” Malone told the ZBA last week.

    He explained that the state Dept. of Housing and Community Development (DHCD), which assists with securing subsidies for housing projects, doesn’t want more than three levels of income restrictions in a single project. The original plan called for three levels, plus market rate, so people earning 60, 80, and 110 percent of the area median income would be eligible for income-restricted rental apartments.

    Malone asked that fewer specifics be written into the ZBA’s approval of the project; he wants the specific income limits to be left to his and the DHCD’s discretion. All of the units would, he promised, be income-restricted.

    “There’s just a level of detail [in the draft of the ZBA decision] that may conflict with the regulatory agreements drafted by the subsidizing agency,” Malone said.

    The change took zoning board members by surprise.

    “Then, that’s a different project,” said Barbara Carboni of KP Law, the acting town planner.

    She asked Malone to provide a written summary of what he wanted. Art Hultin, chair of the ZBA, reiterated her demand.

    “I’ll caution you, Mr. Malone, it’s got to be clear,” Hultin said.

    “Yes, I intend to do that,” Malone said. “We’ll have something written and clear. I’m just alerting you that this language [in the draft decision] won’t work.”

    The ZBA, which has been reviewing the project for over one year, will meet again virtually on Jan. 7 at 5:30 p.m.

    The ZBA has also not yet voted on whether to allow the proposed wastewater treatment plan. A poll of the board, however, found all but possibly one member, John Thornley, would support it. Malone plans to use an alternative treatment system that treats effluent more effectively than individual Title V systems.

    But neighbors of the project continue to raise objections. Karen Ruymann, of Bay View Drive, said even the town’s health agent doesn’t understand why there is poor water quality in the Pond Village neighborhood.

    Emily Beebe, the health agent, had in a previous meeting talked about a resident whose well water had a nitrate level over 10 mg/L although she has a tight tank. Since all septage is contained within the tight tank, her well had to have been contaminated by something else that no one, including Beebe, knows, Ruymann said.

    “This is deeply disturbing to us, that there is not a really detailed hydrogeological study,” Ruymann said.

    She asked that such a study be part of the conditions on the project. That could be a heavy economic burden for Malone and probably would not stand up to a court challenge, Carboni said.

    Beebe told the Independent that she has not herself seen any recent readings over 10 mg/L in Pond Village. But she took that resident at her word. She lives right on Pilgrim Pond, which catches runoff from surrounding hills and Route 6.

    Hultin said the area has had poor water quality for years, but that is not due to the unbuilt Cloverleaf development. Studies by the Cape Cod Commission and an independent peer reviewer, Mark Nelson of the Horsley Witten Group, found the Cloverleaf wouldn’t affect neighboring wells at all.

    The Truro Part-Time Resident Taxpayers’ Association’s most recent newsletter, sent to members on Dec. 21, associates the Cloverleaf with questionable science by the Docs for Truro Safe Water, whose materials talk about the dangers of “nitrate contamination on living things,” the newsletter states.

    The “docs” derive their name from the fact that all of them have doctorate degrees. They are epidemiologist Ron Fichtner; Dr. Frederick Ruymann, a gastroenterologist; Dr. Robert Brown, a neurologist; Mary Pearl, a conservation biologist; Christopher Clark and Brian Boyle, both engineers; and Robert Simpson, who holds a doctor of social work degree and specializes in behavioral health.

    None is a hydrogeologist.

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