WELLFLEET — Kevin Sexton’s plans for two new subdivisions on lots he owns on Old King’s Highway have been awaiting planning board review since they were submitted in early April.

Sexton asked the board on Nov. 6 for a second extension of the hearing dates. The time was needed, he said, to meet the board’s requirement that the properties undergo surveys by a wildlife biologist under the state’s Natural Heritage and Endangered Species Program.

Sexton has proposed a nine-lot subdivision on 10.3 acres at 230 and 270 Old King’s Highway — two adjacent lots along Duck Pond Road — and a 10-lot subdivision on 8.6 acres at 538 and 548 Old King’s Highway — two adjacent narrow lots between Somerset Avenue and Dow Drive.

Edward Pesce of Pesce Engineering & Associates in Plymouth, Sexton’s engineer for both projects, said the state will soon wrap up its habitat review of the 10-lot plan. The planning board set a hearing on that project for Feb. 5, 2025.

The state’s review of the nine-lot subdivision is taking longer. “Almost all of that site is habitat area, so we have to show how we are going to minimize disturbance as best we can,” Pesce said. The planning board continued the hearing for 120 days, until March 5, 2025, nearly a year after the definitive subdivision plans were submitted.

In addition to the habitat review, the planning board required title searches of both properties to clarify any easements they may contain, based on advice from town counsel. Residents have used a path on 230 and 270 Old King’s Highway property to access Duck Pond for more than 20 years.

Vice chair David Mead-Fox is conducting the meetings on the projects in place of chair Gerry Parent, who has recused himself because he lives near the sites. In a letter sent to Sexton on Oct. 31, Mead-Fox said the path to Duck Pond may be a “prescriptive easement” based on the length of time it has been used. “The location of the easement and the prescriptive rights therein must be confirmed,” Mead-Fox said.

Sexton handed the title search documents to board members at the Nov. 6 meeting. The documents failed to say who searched the titles. A note at the end of the search on the property near Duck Pond stated “there is no recorded evidence of a taking or an express easement shown on any recorded plan.”

At its June meeting, the planning board voted to issue a request for proposals from engineering firms to conduct a review of the subdivision plans. Mead-Fox suggested using the formal RFP process, even though it is not generally used when hiring a consulting engineer, “given the complexity of these projects.”

Pesce argued that there was no need for the RFP process, characterizing the plans as “very simple.”

At its November meeting, the planning board picked engineers at Beals and Thomas, a firm headquartered in Southborough, to do a peer review of the subdivision once any revisions required to meet habitat restrictions have been completed. The review, which will cost Sexton $15,000, will confirm that the plans meet the town’s subdivision regulations, comply with the state’s stormwater management standards, and address traffic, emergency access, and pedestrian safety.

As Sexton pursues approval for the two projects, he and his mother, Chellise Sexton, continue their legal claim that they own the land nearby on which the Fred Bell Way affordable apartments were built in 2002.

Claims Against the Town

The Sextons claim they own the 8.6-acre property off 324 Old King’s Highway, which the town took from Ralph Witcher in 1967 for unpaid taxes. The town voted in 1993 to turn the property over to the Wellfleet Housing Authority. After several years of planning, the housing authority signed a 60-year lease with the Community Development Partnership (CDP), the nonprofit that spent $1.5 million to build a 12-unit affordable housing complex that it continues to manage on the site at Fred Bell Way.

In 2017, 15 years after the complex was built, the Sextons filed suit in state Land Court claiming they owned the property based on a 1922 deed. Defendants included the housing authority, the CDP, utility companies, and state and federal agencies that had provided funding for the project. The Sextons also asked the court to revoke easements the town had granted to nearby residents for their utility lines. The Sextons’ contention was that the town built the housing on the wrong property, based on their deeds.

The town prevailed in the suit last December after a six-year court battle, with the judge ruling that the town had the superior claim based on an examination of the deeds. But while the town hoped the ruling would put the matter to rest, the Sextons appealed the judgment in the Mass. Appeals Court a few months later. The case is still pending.

When the appeal was filed earlier this year, attorney Zachary Berk, representing the CDP, said the process generally takes about 12 to 18 months.

Kevin Sexton has a separate appeal against Wellfleet’s then-building commissioner Robert Fowler and the town’s zoning board related to a Land Court suit over clearcutting he did in 2021 on his family’s land in the National Seashore next to LeCount Hollow Beach.

The building commissioner issued a cease-and-desist order when he learned of the clearing. Sexton appealed the commissioner’s order to the zoning board, which upheld it. He then took the case to court, where the judge in June affirmed the town’s actions, saying Sexton had done the clearing without a required permit.

In late September, Sexton asked the Mass. Appeals Court to overturn the Land Court decision. He was recently granted a continuance to February 2025 for filing a formal brief and backup material.

Editor’s note: An earlier version of this article, published in print on Nov. 21, referred incorrectly to the state program under which the proposed subdivisions must be reviewed; it is the Natural Heritage and Endangered Species Program.